Judge Backpedals On Allowing Mass Infringement Lawsuits After Press Calls Attention To Her RIAA Lobbying Past

from the nicely-done dept

There was a lot of attention paid to Judge Beryl Howell’s decision to allow some mass copyright infringement lawsuits to move forward with all the defendants lumped together (and her bizarre claim that this was to benefit the defendants). Soon after that, it came out that Howell had very recently been an RIAA lobbyist, which certainly called her objectivity on such cases into question. Even though neither of the cases she was working on involved the RIAA, the issues were clearly quite similar, and such a ruling would obviously benefit the RIAA should it decide to start suing people again. However, as many people submitted, Judge Howell appears to be backpedaling on those initial rulings and it may lead to the dismissal of most of the cases against the defendants listed. It’s definitely speculation at this point, but people are wondering if the attention brought over her initial rulings may have resulted in these latest rulings. One key point is whether or not Howell recognized how these lawsuits really worked, and how they appeared to be more of a way to use the legal system to get people to pay up as part of a business model, rather than a real legal remedy. Perhaps drawing more attention to that resulted in her correcting her earlier ruling.

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Comments on “Judge Backpedals On Allowing Mass Infringement Lawsuits After Press Calls Attention To Her RIAA Lobbying Past”

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49 Comments
Jay (profile) says:

Law and Judge Howell

Link

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b)(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b)(3) – Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

I don’t see how she hasn’t stepped down from the case. You can back down all you want but look at (a) and tell me she doesn’t have a questionable (biased) background. Look at b(3) and look at her history of being a part of the NET Act, the Patriot Act, or even the DMCA. Her background is biased and as far from impartial as can be…

FUDbuster (profile) says:

Perhaps drawing more attention to that resulted in her correcting her earlier ruling.

How exactly do the new rulings “correct” her prior rulings? Different issues, different rulings. They have nothing to do with each other, as far as I can surmise.

I didn’t understand the point of the torrentfreak article when I read it last week. I certainly don’t understand whatever the point is you’re making now. Care to explain?

Jay (profile) says:

Re: Re:

She has a huge bias from working with the RIAA for 5 years.

This judge has worked closely with copyright law, with the NET Act, the DMCA, and even the Patriot Act. Her judgement is quite clouded against defendants and she has a very strong bent towards the prosecution’s side. Judges are supposed to be impartial. The best thing she could have done would have been to recuse herself from this case.

What makes this especially mind boggling is how in her ruling, she allowed the prosecution to “quest” for IP addresses, because “it would be too expensive for them otherwise”. That’s not justice to all of the issues of joinder, jurisdiction, or due process that is discussed on Techdirt, that’s collusion to the nth degree.

Jay (profile) says:

Re: Re: Re: Objection!

I believe she’s going by the precedents now. If it’s older than 120 days, they’re dismissed. They can add them all but the issues discussed earlier are what killed the cases in other states..

And let the Gods help her if she decides to try to pursue them without considering these other cases…

I think Anonymous would have a field day.

wvhillbilly (profile) says:

Re: Re: Bias

IP addresses are not an infallible identifier of Internet users. Many if not most Internet service providers use DHCP (dynamic addressing) which draws from a pool of IP addresses to assign an IP address to each user logging on to the Internet. When that user logs off, that IP address is returned to the pool to be assigned to another user. Fixed (static) IP addresses are usually provided only on request, and at an additional cost. With DHCP, the same address could be assigned to many different users throughout any given day.

The only way a dynamically assigned IP address could be a reliable identifier of a particular user is if the ISP has an accurate record of who was logged in when and what IP address was assigned to each user at what time, and the person seeking that user’s ID knows the exact time that the IP address they’re seeking the user of was in use. Unless all these conditions are met, it could be anybody.

Nicedoggy says:

Re: Re: Re:

Explain the already explained facts that the code of conduct for judges required her to excuse herself?

Explain that her lack of experience and bias made her make a judgment that goes against all of her other peers?

Explain that she now is trying to fix her standing to appear a bit more reasonable? when the proper instance would be to her to excuse herself completely?

Care to explain why she is still in the case since she is obviously partial to the issues and thus not competent to judge anything from that case?

FUDbuster (profile) says:

Re: Re: Re:

No, I meant explain how these new rulings are “backpedaling” and “correcting” her earlier rulings. I just don’t see it.

Her earlier rulings were in three cases where Time Warner had moved to quash subpoenas they’d received to turn over subscriber information. Amici had raised the issue of misjoinder, so she addressed the arguments, finding that joinder at these preliminary stages was proper. She noted that as plead, the plaintiffs had met the requirements for joinder. She cited relevant case law to back up her decision. She made similar rulings with respect to the jurisdictional and First Amendment issues. Her analysis was thorough, and thoroughly backed up by caselaw.

The issues there were threshold ones, i.e., whether or not subscriber information would be turned over to USCG.

These new rulings have nothing to do with those issues. The issues here are about what happens now that USCG already has this information.

That’s why I’m asking what I’m asking. In what way do these new rulings show that she is changing gears?

If anything, I think the new rulings show more of the same behavior on her part. The 120-day window in the Call of the Wild case had already been extended once. That extension was up in November, and only now is the court inquiring about it. USCG is offering to dismiss the defendants, and she’s simply saying that either they should do it, or she will. Big deal. The issues in the Maverick case are similar. USCG is ready to dismiss, and she says she’ll do it if they don’t. Big deal.

How does any of that show “backpedaling” or “correcting”?

It doesn’t. It’s total FUD.

I’m simply asking Mike to explain his point, if he’s able. I’m sure he has an explanation.

Nicedoggy says:

Re: Re: Re: Re:

Quote:

No, I meant explain how these new rulings are “backpedaling” and “correcting” her earlier rulings. I just don’t see it.

I believe you suffer from tunnel vision because you missed this:
Quote:

Judge Howell appears to be backpedaling on those initial rulings and it may lead to the dismissal of most of the cases against the defendants listed.

Appears is not a conclusive statement is it?

Further:
Quote:

It’s definitely speculation at this point, but people are wondering if the attention brought over her initial rulings may have resulted in these latest rulings.

So Mike didn’t state “backpedaling” or “correcting” was occurring, but wondered if it was occurring, and now with your response we can move on, she is not backpedaling and according to you she is doing more of the same, which we might now call for her to be reprimanded for clear abuse of her position to further the interests of her ex-employer.

Clear that women is not fit to be cashier let alone a judge.

Is that good enough for ya?

Nicedoggy says:

Re: Re:

Quote:

“Whether or not this case settles is not my primary concern,” wrote the judge last week. “Although Plaintiff?s business model relies in large part upon reaching settlement agreements with a minimal investment of time and effort, the purpose of the courts is to provide a forum for the orderly, just, and timely resolution of controversies and disputes. Plaintiff?s wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability.”

Source: Judge John Kane
Righthaven LLC v. Brian D. HillCourt case number: 1:11-cv-00211-JLK

Even her peers understand that those kind of modus operandis are not in the interests of justice, society or even proper.

So what exactly is there to explain?
That thing stinks to highhavens and anybody with two eyes can see it, no amount of BS can cloud that simple fact.

Atkray (profile) says:

Re: I wonder how often this happens

“How much corruption is there in our current court systems?”

a: An incalculable amount.

I personally feel this is the root cause of most if not all our problems.

It isn’t corruption like taking bribes etc…(although I wouldn’t be surprised to find out that also takes place) but the corruption of the values of the individual judges. They are more concerned with establishing themselves and setting precedents than with justice.

I always mark no on the ballot for retaining judges, it is a futile gesture but I live with the disillusionment that they will look at the paper and see someone was unhappy.

Killer_Tofu (profile) says:

The Connection

I probably could have told you she worked for the RIAA prior to being a judge just based on her argument. The idea that lumping them all together is good for the defendants? C’mon now, who does that sound like?
“We only have the artists best interests at heart and this is all for them”
Heh, yeah, sure thing. And I have this lovely bridge to sell you.

Paul Alan Levy (profile) says:

Not backpedaling, in my view, and not for the reason suggested

With respect, Judge Howell’s new order is NOT a change in course from previous ones. Arguing as amici curiae, Public Citizen, the EFF and the ACLU argued that the data from IP addresses was clear enough that the anonymous defendants were not in or near DC that the plaintiff should have to sue elsewhere and get subpoenas from those courts. Judge Howell rejected that argument, saying that the subpoena stage was to early to consider personal jurisdiction.

All she has done here is decide that, once the plaintiff gets identifying information, the plaintiff must eventually dismiss those defendants against whom plaintiff does not intend to proceed in the DDC. That is the same approach as adopted by Judge Collyer here in DDC, an approach Judge Howell followed in the opinion she issued rejecting the approach for which we argued as amici curiae. We argued, in fact, that if she allowed personal jurisdiction she should, at least, order dismissal immediately upon getting the actual ID, instead of letting the plaintiff keep defendants in the case for months at a time in the hope of shaking money out of more Does by the implicit threat of making them defend in DC. Judge Howell has, regrettably, followed Judge Collyer in giving the plaintiffs more time to extort settlement payments through the implicit threat of having to defend in a geographically inconvient forum.

I note here that Mike does not embrace the contention that the blogs made a difference, but only notes that some people are claiming that. Myself, I think it highly unlikely that Judge Howell did anything differently based on the fact that some bloggers complained about her previous time in legal practice helping the RIAA (or, indeed, the fact that she was sympathetic with the concerns of copyright holders when she worked for Senator Leahy). Suggestions from some bloggers that their own condemnation played a role in this order strike me as a reflection of inflated self-importance.

Those connections are not anything that would have required her to recuse herself, and not anything that would cause any federal judge to be embarrassed. Judges come to the bench with worldviews formed by their time as lawyers before they became judges. Neither criminal defense lawyers nor prosecutors who become judges have to recuse themselves from criminal prosecutions generally just because their attitudes may well be affected by their legal experiences as practitioners. They just have to recuse from specific cases in which they or their law offices were involved.

The same is true for judges who, as lawyers, were in private practice and who presented the interests of companies or trade groups. Some judges do choose, for a discrete period of time, to stay off cases in which their old law firms or former clients are involved. But the RIAA is not a party to these cases.

Jay (profile) says:

Re: Not backpedaling, in my view, and not for the reason suggested

That’s most disheartening, though insightful information. Thank you for sharing this view into the legal world.

By chance do you know what may occur with the names that are dismissed? If anything, it seems that with the names, the named Does will likely be facing these shoppers in their states of residence with the same nastygram settlement letters. If I recall, unless they are dismissed with prejudice, there is a chance these people can be sued again.

the old rang (profile) says:

PS:

And the money she received would in no way make her partial:

RIAA Financing

Judge Beryl Howell received 415,000 USD from the RIAA for lobbying work, from 2005 to 2008, during her tenure at Stroz Friedberg LLC. This financing represents a potential conflict of interest for cases which involve copyright law.[2][3]

Nearly half a million means nothing to ethics or influencing her thinking. Ask any rich lawyer or judge…

the old rang (profile) says:

One last PS:

Many of you are overlooking, that RIAA paid off congress members, to allow their ‘lawyers’ to write most of what is the RIAA law…

I wonder if there may have been involvement of any consulting lawyers…

Just thoughts, but, having a hand in writing a law, and giving formal knowledge of potential bribery… naw,.,.. no reason to suspect a cause for recusal,

Paul Alan Levy (profile) says:

By chance do you know what may occur with the names that are dismissed?

Jay is right in assuming that the dismissals are without prejudice. The Dunlap firm has asserted that they are going to file in the federal courts in the states where the alleged infringers are located. Whether they are actually doing that I don’t know.

For those defendants who have realistic defenses to plaintiff’s claim, this means that, at least, they can more easily defend themselves. What we see from time to time is that they can identify a local lawyer with whom they have some neighborhood or family connection, who sympathizes with their plight or is outraged by what the plaintiff is doing, and is willing to help them with a free defense.

johndoe1zero1 (profile) says:

Latest re DGW's Maverick Entertinament case

Docket#: 1:10-cv-00569

http://ia700304.us.archive.org/14/items/gov.uscourts.dcd.141583/gov.uscourts.dcd.141583.docket.html

*** see items 96, 97

Looking at the latest filings, the 4,350 DOEs (first it was 1,000, then 4,350), is now 2,125. About 2,225 of them got dismissed from the suit due to “local jurisdiction” reasons that they’re not in the DC-area.

The kicker is, most/lot, of the dismissed DOEs have their names, addresses included in the doc available for all to see. I wonder whether if they all will received settlement letters.

My own IP is part of the remaining DOEs who are all still anonymous. I wonder if Comcast had release my details to DGW post 4/1 or not.

Anyone else here involved in this case?

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