Judge Who Said Lumping Together Unrelated Copyright Cases Is Fine... Is A Former RIAA Lobbyist

from the aren't-you-supposed-to-recuse-yourself? dept

Tue, Mar 29th 2011 11:33am — Mike Masnick

Last week, we noted that judge Beryl Howell seemed to go against numerous other rulings by mass copyright lawsuit filers in saying that it was just fine to lump all the defendants together, despite the fact that each one was totally unrelated to the others. She even went so far as to claim that this benefited the defendants. She also pointed out that this made it easier for the plaintiffs, and seemed particularly concerned that things be as easy as possible for those plaintiffs. As we noted, our legal system isn't supposed to work that way. The point was making sure that actual due process was allowed, and joining together totally unrelated cases went against that principle.

Of course, perhaps there's a reason why Howell wanted to make things easier for plaintiffs in mass copyright lawsuits. You see, as TorrentFreak points out, Judge Beryl Howell is a recent appointment to the bench, and prior to that worked as a lawyer for a law firm that did plenty of work for the RIAA, and Howell herself was a lobbyist for the RIAA. It also notes that she helped write the DMCA among other copyright expansion laws from the last decade and a half.

As TorrentFreak notes, this certainly seems like a conflict of interest.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: beryl howell, copyright, judge, lobbying
Companies: riaa

65 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 29 Mar 2011 @ 11:50am

Disbar him! Clearly a conflict of interest.
[ link to this | view in thread ]
Markus (profile), 29 Mar 2011 @ 11:53am

Re:
The judge in question was a lobbyist, and we all know all lobbyists are women. But if that wasn't enough to tell you the judge is a "she," I think the part where Mike said "Howell herself" should also have been a give away.
[ link to this | view in thread ]
John Doe, 29 Mar 2011 @ 11:54am

How is it...
How is it that judges like this are allowed to continue to sit on the bench after doing stuff like this?
[ link to this | view in thread ]
Allan R. Wallace (profile), 29 Mar 2011 @ 11:55am

Justice
Usually injustice by a justice is not so blatant.
[ link to this | view in thread ]
Chris, 29 Mar 2011 @ 11:56am

The Judgin' biz....
Gotta earn that backroom payoff. Sometimes you gotta get ridiculous, if you want the big bucks. The more insane the ruling, the fatter the bank account.
[ link to this | view in thread ]
Hiiragi Kagami (profile), 29 Mar 2011 @ 12:03pm

So why didn't she recuse herself?
Surely this judge will realize the issues of her presiding over this case in appeals, right?

I'm not sure how this benefits everyone. Color me skeptical to think routers can make it to court on their own.

This practice should be barred, but it's unlikely going to happen.

When our own vice president uses a term like "unadulterated theft" when discussing infringement, I'm not confident these appointments were based on the best candidate for the job, but one who clearly can circumvent the very rights they were allowed until they're in power to take them away.

This story is all over the internet and it's difficult to believe the EFF won't have a say in this.

Which reminds me. Time for a renewal on my subscription.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 12:05pm

Hmm, how many instances of libel will we see here...

Article forwarded to Judge Howell's office.
[ link to this | view in thread ]
Dark Helmet (profile), 29 Mar 2011 @ 12:07pm

Honestly, how rare is this?
You'd have to think, for instance, that Surpreme Court justices have covered a wide enough variety of the law that they occasionally hear cases on topics they've been involved in. Perhaps not so HEAVILY involved as this case, but how many times are you really getting an impartial judge?

It almost seems like our justice system would be better if there were always 3 judges on a case rather than one....
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 29 Mar 2011 @ 12:09pm

Re: So why didn't she recuse herself?
When our own vice president uses a term like "unadulterated theft" when discussing infringement

The Supreme Court called it no different than "garden variety theft". Want to complain about them too?

This story is all over the internet

You mean whiny tech and freetard blogs like this one? What a surprise.

Newsflash: nobody really cares about crybaby lawbreakers.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 12:11pm

Re:
Could you please point them out for us?
[ link to this | view in thread ]
Gwiz (profile), 29 Mar 2011 @ 12:11pm

Re:
Hmm, how many instances of libel will we see here...

From my very unscientific count, none thus far. Only statements of fact and opinion.
[ link to this | view in thread ]
Atkray (profile), 29 Mar 2011 @ 12:13pm

Re: Re:
What is wrong with you?!

You suggest an AC will actually read when no one else has posted?

;)
[ link to this | view in thread ]
Rich, 29 Mar 2011 @ 12:14pm

Re:
Good, maybe she'll realize what a biased IDIOT she is being.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 12:15pm

Re:
Oh no.
[ link to this | view in thread ]
Atkray (profile), 29 Mar 2011 @ 12:18pm

If integrity > payment
then recuse

else continue
[ link to this | view in thread ]
Markus (profile), 29 Mar 2011 @ 12:19pm

Re: Honestly, how rare is this?
I imagine a lot of the problem is the proximity in time and subject matter to her previous position. She was just recently appointed, and the work she did immediately before her appointment was as an RIAA lobbyist. I agree that topical overlap may occur often, but (as a Supreme Court example) Justice Kagan recused herself when she had been working on a case right before she was appointed that then came before the court, and it's arguable that this situation is somewhere int the same neighborhood of relevance, since this judge's entire job was to advance the goals of the RIAA. To me it actually looks like an even larger conflict of interest in this instance.

As for your second point, a federal appellate lawyer friend of mine recently said the same thing about 3 judge panels. Apparently, even without a conflict of interest, some judges make bad decisions. Shocking, I know.
[ link to this | view in thread ]
Rich, 29 Mar 2011 @ 12:20pm

Re:
Core dump: underflow attempting to evaluate integrity
[ link to this | view in thread ]
RD, 29 Mar 2011 @ 12:21pm

Re:
"Hmm, how many instances of libel will we see here...

Article forwarded to Judge Howell's office."

Facts and opinion are not subject to libel. Section 230 as well.

TrollFail.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 12:25pm

Conflict of interest?
There are plenty of judges who may have strong opinions on issues before them (whether it's something as boring as copyright or true hot-button issues like gay marriage or abortion or health insurance reform); those strong opinions are certainly likely to have an influence on how the judges rule, but having thought about or worked on an issue before isn't a "conflict of interest" that should lead a judge to recuse herself from a case.

If the RIAA or a company they represent were actually a party in this case, it's likely that this could represent at least the perception of a conflict of interest, but the RIAA is not involved. This is a law suit brought by movie studios over movie file sharing.

I'm not saying that this isn't an incredibly stupid ruling or that ill-conceived and twisted patterns of deceptive thought she acquired as a RIAA lobbyist had no effect on Judge Howell's ruling, but it's just bad law. It's not a conflict of interest.
[ link to this | view in thread ]
CK (profile), 29 Mar 2011 @ 12:26pm

Re: Re: So why didn't she recuse herself?
Except no one has proven that the defendants in this case actually are lawbreakers. That's why there is a trial, and as it stands an unfair one to the accused. That should concern anyone in the US, not just "freetards".
[ link to this | view in thread ]
Gwiz (profile), 29 Mar 2011 @ 12:28pm

Quote
Found this quote attributed to Beryl Howell:

"Unquestionably, there are online crooks who are getting away with impunity. Victims are fending for themselves."

Not really sure what context this was in or what it referring to, but it is interesting for sure.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 12:32pm

Re: Quote
Interesting in that it's 100% true?
[ link to this | view in thread ]
Greg G (profile), 29 Mar 2011 @ 12:32pm

Re: Re:
the AC will highlight that one and should "LIBEL!" from the rooftops.
[ link to this | view in thread ]
Donnicton, 29 Mar 2011 @ 12:35pm

Although, on the other hand, I'm not entirely convinced that she earned half a million over five years lobbying for the RIAA in order to promote the excitement of Justin Bieber's latest hit album to congress.

I can understand having worked with legislation towards a particular goal such as being involved with the creation of the DMCA, that's not necessarily going to be a smoking gun, it just happened to be something you were involved with.
But, when you receive hundreds of thousands of dollars from a private corporation to promote a particular viewpoint to the government, and then become a judge and just happen to immediately start ruling in favor of those particular viewpoints(regardless of whether it's for the same company), I can see it being rather understandable that a few eyebrows are going to be raised.
[ link to this | view in thread ]
Markus (profile), 29 Mar 2011 @ 12:36pm

Re: Conflict of interest?
You're right. She didn't work for any of the companies in the suite. She (immediately prior to this) worked as a lobbyist of an organization that would greatly benefit should this ruling stand. If that is not enough of a conflict for you, maybe the fact that these companies are members of an organization (MPAA) that has extremely close ties to the RIAA and would also likely benefit is enough? No? Well then, yeah, she didn't work for those specific companies.
[ link to this | view in thread ]
Not an Electronic Rodent (profile), 29 Mar 2011 @ 12:39pm

Re: Re: So why didn't she recuse herself?
You mean whiny tech and freetard blogs like this one?

Any time you want to go away and find a blog for arrogant, rude, pointless people who whinge about how hard-done-by they are because the goverment doesn't just automatically tax everyone and give them the money instead of them having to work for a living would be just fine. Send a postcard.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 12:40pm

Re: Re: So why didn't she recuse herself?
If it's no different than "garden-variety theft" then why didn't they just call it garden-variety theft?
[ link to this | view in thread ]
Not an Electronic Rodent (profile), 29 Mar 2011 @ 12:44pm

Re: Re:
Core dump: underflow attempting to evaluate integrity

Ooo geek humour... love it. Yep a divide-by-zero error will do it every time :-)
[ link to this | view in thread ]
HothMonster, 29 Mar 2011 @ 12:44pm

Re: Re: Re: So why didn't she recuse herself?
How many different things do I have to take from the garden for it to be a variety theft?

Is that better or worse than a garden-monotony theft?
[ link to this | view in thread ]
ltlw0lf (profile), 29 Mar 2011 @ 12:48pm

Re: Re: Quote
Interesting in that it's 100% true?

I'd certainly agree. Your task-masters (the labels) are getting away with impunity and the victims (artists and consumers) are stuck fending for themselves. When the whole label astroturfing thing doesn't work out for you, I am sure Mr. Hope from JAWA might be able to use your services.
[ link to this | view in thread ]
Gwiz (profile), 29 Mar 2011 @ 12:52pm

Re: Re: Quote
Nope, I found it to be interesting because it seems to be a very biased statement, that's all.

As for the "Victims are fending for themselves." part, I am really OK with that myself.

Copyright is a government granted monopoly where only the rights holder is allowed to profit from the works, so it makes sense to me that if the rights holder wants to enforce that copyright then the rights holder should shoulder all the responsibility to do so, financially or otherwise.
[ link to this | view in thread ]
JMT, 29 Mar 2011 @ 1:00pm

Re: Conflict of interest?
If the judge's performance had been beyond reasonable criticism your argument would be much stronger. But she appears to have made a very unusual ruling which goes against precedent, and made bizarre claims that are demonstrably false (�this benefits the defendants�). Given that this is exactly the result she would�ve recently pushed for as a RIAA lobbyist, it raises the very strong possibility, and more importantly the perception, of a conflict of interest. That sounds like grounds for her to be recused to me.
[ link to this | view in thread ]
Rich, 29 Mar 2011 @ 1:10pm

Re: Re: Re:
Thanks! Although, the geek in me just has to say that divide-by-zero is not an example of an underflow. An underflow occurs when a value is too small to representable in the given type (which usually result in the value being set to 0). A divide-by-zero will (assuming IEEE Standard 754) result in either infinity or a NaN. Sorry, I just had to...
[ link to this | view in thread ]
Gwiz (profile), 29 Mar 2011 @ 1:13pm

Re: Re: Re: Re:
The geek is strong with this one.......
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 1:16pm

Re: Re:
Get off his back, she probably ruled in his favor at some point.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 29 Mar 2011 @ 1:18pm

Re: Re: Re: So why didn't she recuse herself?
Except no one has proven that the defendants in this case actually are lawbreakers. That's why there is a trial, and as it stands an unfair one to the accused. That should concern anyone in the US, not just "freetards".

I think you mean "Freedomtards."

Damn leeches.
[ link to this | view in thread ]
crade (profile), 29 Mar 2011 @ 1:19pm

Re: Re: Re: So why didn't she recuse herself?
I love that word. I love how it sounds like you are saying people wanting freedom are retarded and it's supposed to be a derogatory term. I can just picture them using "freetard" to try to demean the slaves that dissented back in the day. Seriously they have got to come up with a better derogatory term. Maybe try playing off a word that doesn't also mean an ideal that nearly everyone admires and people fight and die for? I almost think that "freetard" has got to be a planted term to sabotage people who use it :)
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 1:20pm

The crooks from the music industry are becoming judges now?

I'm shocked, the justice is just failing apart in the U.S. there is no bar if the ex-employee's from the recording industry can anybody can be a judge now.

Maybe Osama Bin Laden can be a judge to.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 1:21pm

Corrupt Legal System
Just another example of how corrupt the US legal system has become. And when a system is corrupt, no one has any moral obligation to obey it. If anything, they have a moral obligation to bring it down. Too bad there seem to be so few moral people in the US.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 1:22pm

Re:
Since you are clearly the message boy could you please forward my "f. you" to her?
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 1:25pm

Then the government asks why people don't take them seriously.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 1:42pm

With the conflict of interest, the judge should have reclused herself. That she didn't means it's a very likely subject in the appeal and one that will carry weight in favor of an overturn.
[ link to this | view in thread ]
Steven (profile), 29 Mar 2011 @ 1:42pm

Re: Re: Re: Re:
This of course assumes floating point representation of integrety (IEEE 754 is the floating point standard)

However in integer division by zero there is usually a failure, small explosion, fire, and then engineers running around like chickens with there heads cut off.
[ link to this | view in thread ]
Rich, 29 Mar 2011 @ 1:56pm

Re: Re: Re: Re: Re:
Yes, and the technical term for this is going off in the weeds. :)
[ link to this | view in thread ]
The eejit (profile), 29 Mar 2011 @ 2:17pm

Re:
He is, he's just beding his time until Infidel America falls apart.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 2:32pm

Re: How is it...
judge lobbyists?
[ link to this | view in thread ]
Planespotter (profile), 29 Mar 2011 @ 2:33pm

Re: Re: Re: Re: Re:
f*ck man... you just made me inhale my coffee!
[ link to this | view in thread ]
Planespotter (profile), 29 Mar 2011 @ 2:34pm

Re: Re: Re: Re: Re:
Bollocks... now I've spilt the bloody cup down my shirt! ggrrrr..
[ link to this | view in thread ]
Chris in Utah (profile), 29 Mar 2011 @ 5:25pm

Re:
Just hope somebody tells the lawyers.
[ link to this | view in thread ]
Jay (profile), 29 Mar 2011 @ 5:49pm

Re: Re:
I'm pretty sure the EFF has been made aware of this. What they do now would be very interesting.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2011 @ 5:56pm

Re: Re: Conflict of interest?
This is like saying that Justice Kagan should continue recusing herself from any cases involving liberals or liberal causes because her previous job was as solicitor general under a liberal president.

Yes, this is an absurd ruling which goes against how other judges has ruled (though I don't think it specifically violates any appellate precedents in that circuit), but there's no evidence that she made this absurd ruling for the sake of personal gain rather than due to the same bizarre copy-right-wing ideology that likely got her her lobbying job in the first place (or that she developed during her time there).

Now, if she still owned a bunch of stock or stock options in RIAA companies, the argument you're making about the benefit the precedent might have on the RIAA could certainly hold some weight, but I've heard of nothing like that here.

(I'm also not saying that this isn't corruption--it's certainly conceivable that her original appointment was in some sense Obama paying the MPAA/RIAA/etc. back for campaign contributions. I'm just saying that there hasn't been any evidence that there was a conflict of interest of the sort that would be expected to lead to an ethical judge recusing herself from the case.)
[ link to this | view in thread ]
monkyyy, 29 Mar 2011 @ 11:48pm

the defenses case

1) the judge is on the riaa`s payroll
2) that riaa lawyer wanted on this judge
3) no other judge has ever lumped so many unrelated cases together
4) reminder: their is a law in place for prevent this, but yet we are here
[ link to this | view in thread ]
Anonymous Coward, 30 Mar 2011 @ 4:16am

Re: Re: So why didn't she recuse herself?
The Supreme Court called it no different than "garden variety theft". Want to complain about them too?

Which is funny, because they've ruled over and over that it is, in fact, NOT THEFT!

get your facts straight troll.
[ link to this | view in thread ]
Jim, 30 Mar 2011 @ 6:29am

Re: Justice
don't forget the 2 PA judges who got paid for sending juveniles to detention centers without representation
[ link to this | view in thread ]
The Devil's Coachman (profile), 30 Mar 2011 @ 6:40am

Re:
How considerate of you! It almost offsets the fact that you are completely full of shite.
[ link to this | view in thread ]
Anonymous Coward, 30 Mar 2011 @ 7:36am

Re: Re: Justice
That proves that all judges are corrupt and the whole legal system is rigged. QED.
[ link to this | view in thread ]
hmm (profile), 30 Mar 2011 @ 2:04pm

well
I'd have thought they'd have noticed she was from the RIAA, firstly because she makes her opinions quite obvious, but mostly from the fiery glowing eyes and stench of brimstone whenever she entered the courtroom.

Well that and the wailing of the damned whenever she banged her Gavel of Soul-Eating.
[ link to this | view in thread ]
Richard (profile), 30 Mar 2011 @ 2:57pm

Re: Re: Re: Re: So why didn't she recuse herself?
To me the word suggests a mixture betwen two ancient categories of saint

A "Holy Unmercenary"
and a "fool for Christ's Sake"

If you read the links you will find they are really very appropriate - and the term is actually a great honour
[ link to this | view in thread ]
Richard (profile), 30 Mar 2011 @ 3:05pm

Re: Re: Re: Re: Re:
The geek is strong with this one.......
err - no ..... technically a geek is actually a performer who bites the heads of live animals (Ozzy Osbourne?)
[ link to this | view in thread ]
Richard (profile), 30 Mar 2011 @ 3:06pm

Re: Re: Re: Re: Re:
However in integer division by zero there is usually a failure, small explosion, fire, and then engineers running around like chickens with there heads cut off.

by a geek? - see above...
[ link to this | view in thread ]
Ken, 31 Mar 2011 @ 6:18pm

Facebook Group Calls To Impeach Judge Howell for Conflict of Interest
I have created a Facebook group to bring public attention to Judge Byryl Howell. This is the very definition of a conflict of interest. She should have recused herself from hearing any copyright cases.
[ link to this | view in thread ]
Ken, 31 Mar 2011 @ 6:19pm

Re: Facebook Group Calls To Impeach Judge Howell for Conflict of Interest
https://www.facebook.com/home.php?sk=group_144697032262506
[ link to this | view in thread ]
Ken, 31 Mar 2011 @ 6:30pm

Re: Corrupt Legal System
What makes this case unusual too is she is a very new judge. New Judges usually always recuse themselves to avoid even the appearance of impropriety. She is really making herself out to be an activist judge.
[ link to this | view in thread ]
jim bank, 6 Apr 2011 @ 4:45pm

Judge Howell didn't check the copyright owner
In this case, Maverick Entertainment is suing for copyright infringement for the movie "the clique".

Maverick doesn't even own the rights to the movie, its owned by � 2008 Warner Home Entertainment. All rights reserved.

The way most bit torrents work they are configurable for various settings on duplicate named files. Last in first out is common so in this case if multiple downloads happened simultaneously in the "swarm" chances are NONE of the data from the Maverick Entertainment movie of the same name was even downloaded, and even more likely the "swarm" side of the upload would have been confused.

Anyway, five minutes and an understanding of bittorrent configurations could have saved thousands of lawsuits. The way it goes now however is that Maverick Entertainment is going to be collecting settlements enabled by a DC Judge Howell that is on the edge of conflict of interest, for copyright infringement of a movie they don't even own.

CRAZY...I wonder if Warner Home Entertainment can sue Maverick Entertainment for gains $$$ that were knowingly obtained under a false and clearly confusible bit torrent file.
[ link to this | view in thread ]
Anonymous Coward, 26 Nov 2013 @ 5:01pm

average_joe just hates it when due process is enforced.
[ link to this | view in thread ]