RIAA Lobbyist-Turned-Judge: ISPs Deserve Copyright Trolls For Not Stopping Infringement

from the activist-judges? dept

We’ve written about judge Beryl Howell a few times before. She’s the recently-appointed judge whose immediate job prior to that was as a lobbyist for the RIAA. Before that, she worked for the Judiciary Committee and was apparently a key player in drafting the DMCA. It seems pretty damn clear that she holds a strong viewpoint on the nature of copyright law and copyright infringement — but that hasn’t stopped her from taking those cases, even when her rulings appear to be exactly the opposite of nearly every other court. For example, while most courts have been throwing out copyright trolling lawsuits for improper joinder, Judge Howell had no problem with the practice and ordered various ISPs to cough up names based solely on IP addresses.

The ISPs asked her to reconsider back in April, noting how pretty much every other court has ruled otherwise. The specific case involves well known trolling firm, Prenda Law, which is connected to one of the larger jokes in the copyright trolling business: John Steele. Steele’s lawsuits have been laughed out of court and he’s even been told to stop filing these bogus lawsuits, where the clear purpose is to use the judicial system as a weapon to force people (innocent or guilty) to pay up.

But apparently copyright trolls have found a friend in Judge Howell, who not only is welcoming them with open arms, but seems to be using these trolling cases to further the goals of her former employer. She’s released her decision on the motion to quash the subpoenas, and it’s basically a 42-page screed on the evils of infringement and how ISPs should be responsible for stopping piracy (much of which has absolutely nothing to do with the case at all). The only nod towards the other side seems to be a weak acknowledgement that “the Court recognizes that other Judges on this Court have reached different conclusions with respect to the legal questions posed by the ISPs” and thus she’s agreed to stay her decision until the appeals court weighs in.

But she makes sure to get her arguments in for the appeals court to read, and it certainly feels like she reverted back to “lobbyist” mode, rather than “impartial judge.”

She kicks off the polemic with a grand history of the DMCA, and how the task force that was created to write the DMCA originally wanted to pin liability on ISPs for actions done by their users. And while she admits that eventually the DMCA did include such liability protection, it seems clear she would have preferred it the other way. She then highlights the important court decisions from a decade ago, against the RIAA and in favor of Verizon and Charter, that ruled that the RIAA could not demand ISPs identify users without actually filing a lawsuit against them first. This, of course, was a basic recognition of basic privacy rights, and the fact that if you are going to expose someone’s private info, you ought to at least file a lawsuit against them first. But, in the world of Judge Howell, apparently this was a bad decision. She approvingly cites the dissent in one of the key cases, claiming this somehow “unraveled” the balance struck in the DMCA. Nothing, of course, is further from the truth. That’s a total rewrite of reality.

She also seems to suggest — contrary to the very law she was just citing — that ISPs have some sort of responsibility to “deter infringing activity.”

Other than barebones references from two of the four movant ISPs that these subpoenas impose “a substantial administrative burden,” the ISPs fail to present any witness or other evidentiary detail to demonstrate a burden to the Court, let alone what steps the ISPs are or could be taking to deter infringing activity on their networks to reduce any burden subpoena compliance engenders.

This is a fascinating interpretation of the law. Basically, she says that if they’re going to claim that copyright trolls are showing up with tens of thousands of IP addresses, demanding they all be identified, then that means they also have to show that they’ve taken “steps” to “deter infringing activity on their networks.” In other words, if it’s burdensome to the ISPs to identify users to copyright trolls, it’s their own damn fault for failing to stop infringement. Seriously.

Oh, and then she flat out misrepresents the GAO’s findings from a few years ago that found that all of the entertainment industry’s claims about the impact of “piracy” were complete bunk. Yet, in the world of former RIAA lobbyist Judge Howell, the GAO actually came to the opposite conclusion:

The plaintiff’s estimates regarding the amount of online infringing activity and the economic harm resulting from such activity is corroborated by a recent government report. See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10- 423, INTELLECTUAL PROPERTY: OBSERVATIONS ON EFFORTS TO QUANTIFY THE ECONOMIC EFFECTS OF COUNTERFEIT AND PIRATED GOODS 23-24 (2010) (estimating that U.S. economy annually loses $58 billion, over 370,000 jobs, and $2.6 billion in tax revenue as a result of copyright infringement over the Internet) (citing Stephen E. Siwek, THE TRUE COST OF COPYRIGHT INDUSTRY PIRACY TO THE U.S. ECONOMY, Institute for Policy Innovation (IPI), IPI Center for Technology Freedom, Policy Report 189 (Oct. 2007)).

Uh, no. Go read what the GAO actually said. While the report does cite Siwek’s widely discredited report of $58 billion in losses — it does so only to say that Siwek did these studies and they claimed to show “ripple effects” beyond the immediate industry. However, most of the rest of the report highlights how those numbers, and others like them, cannot be substantiated and that most experts they spoke to found the methodology questionable. Furthermore, the report specifically calls out the reports that only try to calculate the negative impact, without even considering any possible positive impact, as being clearly misleading. That describe’s Siwek’s research exactly. Specifically, the GAO report noted:

Since there is an absence of data concerning these potential effects, the net effect cannot be determined with any certainty

In other words, sorry, but the Siwek claim of $58 billion is hogwash. And yet Judge Howell pretends that the GAO has blessed this number.

The ruling goes on to defend its position, but basically says that there is no burden on the ISPs and if there is one, it’s their fault. It also says that there is no issue of improper joinder to consider until after everyone’s identified (at which point it won’t matter, since that’s all the copyright trolls want, so they can then shift to demanding cash from them). The whole thing, once again, raises significant questions about why a judge who had such a vested stake in pushing for an extreme maximalist view of copyright now gets to judge cases where key decisions are made about the interpretation of copyright law.

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Companies: riaa

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Comments on “RIAA Lobbyist-Turned-Judge: ISPs Deserve Copyright Trolls For Not Stopping Infringement”

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Kevin H (profile) says:

Re: Re:

“If the music industry cannot stop infringement without outside help, they should not be in business.”

We need to call them the gate keeper industry. The music business is fine and doing very very well right now. The gate keeper industries that are trying so hard to keep their income that they are willing to sue, humiliate, and bankrupt their customers to keep control of what they have.

The harder they fight the farther they’ll fall.

Anonymous Coward says:

Re: Re: Re:

Well Benjamin Franklin spent a few decades in England fighting the legal system over similar mindsets, except it was in regards to property/land rights and not copyright. When he’d had enough, he got together with a few dozen other “miscreants” (like those rabble rousers Jefferson and Washington) and wrote a document telling the British government where to go and how to get there.

I think we’re coming up on that point in history where people are going to start giving the same advice to the US government.

Kelledin (profile) says:

Re: Re:

Interestingly, I would say that a person who was so key in writing DMCA might know a thing or two about it’s intended application.

She was one of many parties involved in drafting the DMCA. She definitely has a very good idea what she wanted it to say, but nobody involved got everything they wanted out of the DMCA. She certainly isn’t entitled to decide after the fact, against the clear letter of the law and the overwhelming concensus of many other courts, that it actually says what she wants.

Machin Shin (profile) says:

Re: Re: Re: Re:

I’m not even sure what to think or say about that. I have been sitting here reading this and trying to get my mind to comprehend your logic.

Your actually trying to support a judge that is twisting laws to make them into what she WANTS them to be not what they REALLY ARE. Yes, she was part of writing the laws, but she was far from the only person and she did not get her way when writing it and is now pretending she did.

To make this argument you bring up that bull shit trade agreement that is being treated like some major secrete vital to national security. Well fuck you very much, laws should NEVER be make in secrete if it is going to affect me I should have the right to see it and voice my opinion.

Anonymous Coward says:

Re: Re: Re:2 Re:

“Your actually trying to support a judge that is twisting laws to make them into what she WANTS them to be not what they REALLY ARE.”

This presumes that YOU know what the laws really are better than a federal judge involved in the law’s drafting.

I think that’s a questionable presumption (especially if you’re relying on Mr. Masnick’s descriptions of the law to form your opinion).


Re: Re: Re:3 Running off the rails.

Unless she was a sitting legislator, her opinion on the matter is worth as much a soiled bit of toilet paper. Any “original intent” argument needs to come from the actual source rather than some industry shill.

She was never a congressman or senator.

She has no “inside insight”. She’s just another obnoxious judge trying to tell other people what they were thinking when they were doing the real work.

She’s not entirely unique in this regard.

Kelledin (profile) says:

Re: Re: Re: Re:

This isn’t a matter of her not understanding the intent of the DMCA. It’s a matter of her understanding it quite well, then trying to misrepresent it to fit an agenda.

The DMCA was written by a group of legislators, of which she was only one part. The letter of the DMCA clearly reflects the group’s intent in this case, and the group as a whole clearly sided against her on this issue. You (and she) need to grow up and live with that.

The eejit (profile) says:

Re: Re: Re: Re:

And yet, that’s not a conflict of interest the size of Texas. That’s an…interesting…view of conflict of interest. You lobby for a law, then you become a judge and seem to lose all impartiality in one area of cases? There’s a simple solution for this….don’t let them preside in cases where they were involved in writing the law.

Anonymous Coward says:

Re: Re:

Hey Mike,

Why was this comment censored? I don’t understand why you tolerate your readers censoring posts they don’t like.

And before you all chime in how reporting a post is not censorship, of course it is. Under Mike’s own extremely broad definition of the term, it is. If Google removing autocomplete suggestions from its search engine is censorship (even though the results still showed when searched for), then hiding someone’s post is censorship. You’re hiding it away from view, making it more difficult to access. Just like Google.

Are you all really that immature that you can’t even stand to see a dissenting view? And Mike, why don’t you discourage this sort of behavior? Shame on you. You should encourage folks to speak their minds, not hide away anybody’s thoughts that happen to be different than the TD norm. I don’t get it. I thought you guys believed in freedom of expression, yet all I see, day after day, is any expression that you disagree with gets reported and censored.

I’m sure this post will also get censored. God forbid anyone say anything that someone else doesn’t like. If you all really believed in free speech, you wouldn’t hide other views away. You’d counter those views with your own views. You’d fight words with words. Instead, there’s this whole “report it, I don’t like what they’re saying” attitude. That attitude comes from the top down, Mike. Again, shame on you for fostering an environment that is so incredibly hateful of anyone who says anything that isn’t popular. I don’t think you practice what you preach.

Anonymous Coward says:

Re: Re: Re: Re:

Yes, flagged and hidden away. What’s the point of reporting dissenting views? It’s immaturity at its worst. And why doesn’t Mike discourage such behavior? I can’t imagine letting people censor posts in the first place, and then not say anything when that feature is abused. Why does he tolerate it?

Anonymous Coward says:

Re: Re: Re:7 Re:

“Fallacies derail the conversation.”

If only pure, perfect comments without any logical leaps, gaps, or fallacies went unflagged, there wouldn’t be much of a conversation to take part in.

Flagging derails the conversation much more than hiding anything that is logically imperfect.

Greevar (profile) says:

Re: Re: Re:8 Re:

All you people do is accuse us, attack us, and skew the debate. Flagging is a service to anyone that doesn’t want their eyes assaulted by your verbal diarrhea. It’s not censorship. In fact, the flagging of the comment actually draws attention to it. I would think an attention whore such as yourself would be ecstatic with joy for all the response you’re getting. But you go ahead and keep pretending it’s censorship so you can continue to make false accusations of hypocrisy.

Anonymous Coward says:

Re: Re: Re:9 Re:

Who, exactly, are “you people?”

I don’t know if you are interested in learning, or just interested in reinforcing preconceived notions.

If you are legitimately interested in learning, I would suggest not treating everyone who disagrees with your opinion as falling into some monolithic “other” category and shares all the same opinions/attributes/etc.

Rapnel (profile) says:

Re: Re: Re:2 Re:

Censored!? You’re kidding with that crap, yes?

I can read it. I don’t know what your problem is.

Flagged and collapsed and expandable if desired is pretty far from censorship.

I don’t know if you visit other sites or not, nor do I care, but this site is the epitome of one that is free and “open”.

case in point == “fuck” or TechDirt. is a bunch of puss ass freetards or “some US judges suck sometimes”. Put that shit up on msnbc or a cnn and see what comes of it.

Censored. Get a grip maximalist whore.

Benjo (profile) says:

Re: Re: Re: Re:

In fact I’d almost say that flagging/reporting without removing the post brings more attention to the comment then it would receive normally, as they are clearly distinctive and stand out.

It’s almost like flagging it brings it to the top of search results, so your auto-complete comparison is IN MY OPINION flawed.

And now I’ll stop before anyone points out how I’m being swept in to an argument with a likely troll. There’s no argument like no argument.

Anonymous Coward says:

Re: Re: Re: Re:

“So when it happens here you are against it, but when it happens elsewhere via DMCA takedowns you vehemently support it. Got it.”

Which is exactly why they are called hypocrites. He’s one of the same ones applauding decisions and actions to seize websites, violate due process, and go after these terrorists… I mean pirates… at any cost. Even if it means stripping away the rights of citizens.


The levels of hypocrisy they bring here are so high I’m surprised we all haven’t gagged from the irony of some of the comments they have the nerve to post.

Anonymous Coward says:

Re: Re: Re:2 Re:

If that were the case, a *lot* more comments would get flagged.

Don’t get me wrong, there are some intelligent regular commenters that share the majority opinion here, but there are also a lot of numbskulls that never seem to get their nonsensical comments flagged (which just so happen to support the majority view).

As for your “ad hom” comment, I am addressing the subject matter of the prior commenter’s comment: flagging dissenting comments by the community.

Anonymous Coward says:

Re: Re: Re: Re:

It’s getting reported by the community because it’s an argument from authority that’s arguing from imaginary authority. Plenty of thoughts that happen to be different than the TD norm don’t get reported.

If you think someone’s point is incorrect, respond with your reasons why. Hiding posts that you don’t think are correct is just immature and idiotic. If you all really valued free speech, you’d recognize the value of dissenting views. There was no good reason to censor that post, and the fact that Mike provides the means for censorship and fosters an environment where posts like that are hidden from view is just disgusting.

Niall (profile) says:

Re: Re: Re: Re:

Maybe Mike should just change the whole text of the flagged comment to light pink instead, or even white, instead of collapsing it. 🙂

I still think it sounds like people getting butthurt because so many people dare disagree with them. Next thing, they’ll be complaining that they are being ‘censored’ by not getting Insightfuls, Funnies, or First/Last Words!

Gwiz (profile) says:

Re: Re: Re:

Why was this comment censored? I don’t understand why you tolerate your readers censoring posts they don’t like.

While I don’t necessarily agree that this equates to censorship (it’s flagged by the community as a whole, not anyone in authority and it’s still available with a click), I will agree that the report button shouldn’t be used on dissenting comments simply because they are different views.

Mike – I have a thought on this – is there some way to place an “unreport” button on the flagged comments that would be available to logged-in users that could bring the comment back after x amount of clicks? I think making it only available to logged-in users would be required to curb abuse.

RD says:

Re: Re: Re:

“I’m sure this post will also get censored. God forbid anyone say anything that someone else doesn’t like. If you all really believed in free speech, you wouldn’t hide other views away. You’d counter those views with your own views. You’d fight words with words.”

Yes, so you can wave your hand dismissively when those counter arguments challenge your views, fail to answer any of them, fail to respond with specifics or citations, and then deflect any other criticism by claiming “censorship” and “free speech” are being used against you.

“Instead, there’s this whole “report it, I don’t like what they’re saying” attitude.”

Yes…so? In case you haven’t noticed, these posts are all opinion. People aren’t required to like what you are saying, agree with it, or even give you . They like what they like, they comment how they feel. Don’t like it? Can’t handle the criticism? Fine, feel free to find a discussion more to your liking, where you won’t get called out (or “reported”) for your specious, misleading, and incorrect comments. The bootlickers there will treat you how you feel you should have your ass kissed.

Anonymous Coward says:

Re: Re:

First sentence: Argument from authority.

Her part in writting the DMCA does not mean her opinions or statements about it are accurate. It’s also worth noting that the intended application is completely irrelevant in 2012. What’s relevant now is what the text actually says and how that has been interpreted legally over the last decade.

Second sentence: Straw man.

No one argued that ISPs and service providers were supposed to get a blanket free pass under the DMCA. The DMCA has a massive number of strings attached to safe harbor provisions of which we’re well aware. The issue is that you can’t ignore the safe harbor provisions when it suits you, even if you’re a judge. Especially then actually.

That Anonymous Coward (profile) says:

Re: Re:

I’d like to highlight one itty bitty tiny problem I didn’t see touched on.

The cases brought by the Copyright Trolls have NOTHING to do with the DMCA, in fact the trolls have a history of not working in their client’s “best” interests by filing DMCA notices because that would dry up the gravy train.

So now that your done fapping to the DMCA, would you like to actually discuss the Copyright Law this Judge is ignoring?

Kelledin (profile) says:

Re: Re:

Officially? Nominated by Obama, confirmed by the U.S. Senate. Somebody with some White House influence might have made the initial suggestion behind the scenes…


In any event, with the apparent blatant disregard for the letter of the law AND misrepresentation of the GAO report, it seems to me she just crossed the line from unintentional bias to a deliberate attempt to subvert justice from the bench.

I suspect whatever higher-level judge ends up calling her out on this will be too polite to ascribe her fuck-up to anything worse than accidental misreading. Malice vs. incompetence and all that.

Some Anonymous Guy (profile) says:

Re: Re: Re:

I don’t understand how you can appoint a former lobbyist for what’s essentially a massive union with a boatload of cash to a federal judgeship in the District of Columbia. She is hardly impartial. She worked for Leahy (Democrat), who’s a friend of Obama (Democrat), so one would surmise that her nomination and and subsequent Senate confirmation was political in nature. No lobbyists in my administration says Obama. So what does he do? Hires a bunch of lobbyists to work for him and nominates a former lobbyist to a seat on the DDC.

Based on her, well, outspokenness on the topic of copyright infringement and all of her decisions basically align with her comments, not to mention her blatant misrepresentation of the GAO report, only an idiot would call her impartial. I don’t understand why she makes these asinine rulings that will end up being kicked to the curb by an appeals court…judges (except Shadur who’s overturned once a year by the Seventh) HATE that so they usually err on the side of caution and don’t make any radical rulings. Howell’s JD came from Columbia University so she isn’t an idiot by any means. Have you read her ruling in the AF Holdings v. John Does 1-1058 (1:12-cv-00048) case? It’s ridiculous. She says basically says IP geolocation is useless in court, that joinder of Does is “efficient” (what the hell?), and basically stated that Prenda/other trolls can do whatever the hell they want as long as they have an IP address. Who cares if they live outside the jurisdiction of the District which is like 99.999% of the IPs. She has clearly stated that she is well aware that while these cases continue, trolls extort money from frightened Does…and that it’s not her problem.

Between this ruling, Judge Wilkins’ rulings contradicting, well, all of Howell’s rulings in various cases, Facciola’s ruling in the HDP v. Does 1-1495 case directly contradicting his own ruling only 13 days earlier in the West Coast Productions case, and Judge Walton’s order to name or dismiss which relied on Facciola’s West Coast ruling, there’s a GIANT split in the Court. The issues raised causing the split will be decided by a higher court and that ruling will carry great weight and district judges will likely use it as precedent.

Howell, through her decision, has certified an immediate interlocutory appeal, which is surprising since the party seeking the appeal while the case is still open has to satisfy a very high legal burden, the ISPs have done so. The higher court will rule on all of the issues that are in question: joinder (Howell says it’s “economical” to file lawsuits of this size), jurisdiction (not an issue until defendant is named), the issue of not allowing unnamed defendants to file anything (since they’re not named), compelling ISPs to comply with subpoenas and the burden associated, allowing trolls to send out settlement letters without naming a single Doe, and who knows what else. It’s an issue of whether to follow the letter of the law (Howell) or a fair application of the law in order to prevent exploitation of the court system. Here’s to hoping that the Circuit sides with the ISPs or at least comes up with a compromise.

Anonymous Coward says:

What good is a gatekeeper, when all the fences have been taken down?

What good is having a guard on the gate when there are no walls or fences stopping people from walking ‘around’ the gate…

Oh, I see, that’s the real problem and why the gatekeeper industry is failing.

Lets send them to China, they have some great walls over there, I’m sure there are still some gates left to guard.

Anonymous Coward says:

she acts like judge Roy Bean, aptly named the hanging judge because of the number of people he convicted, having already made up his mind on their guilt before the case began.
as other judges know exactly what this biased bitch is doing by ignoring everything that has gone before and giving sensible judges much more work, why the hell isn’t she pulled to one side by someone of authority to have her fortune read? if she then doesn’t toe the line, let all her dirty laundry get a public washing!

Anonymous Coward says:

I haven’t undertaken a rigorous numerical analysis, but I’m not sure if most courts are throwing these cases out for improper joinder.

Some are, but not most. I know several District of D.C. judges have allowed subpoenas on ISPs and have rejected improper joinder motions.

Mike, do you have any support for your claim?

gorehound (profile) says:

This lady is a corrupt piece of shit (sorry for the swear).I get very angry knowing that this is just what MONEY & MAFIAA buys.She is totally in favor of and in the pocket of those who would love to Censor Us, Control Us, and No Surprise at all about the Copyright Trolls.
And no one is going to clean up her mess.Why should they ? As they are all Paid-Off quite well from the Corporations.

revolving door says:

There’s definitely a need for tough laws prohibiting this “revolving door” between the government and commercial interests. (and how long have people been asking for that?)

But what can you do? Every time citizens get disgusted enough to kick out a few of the corrupt politicians, the new ones turn out to be just as bad — or worse, as with “Mr. Change” Barack Hussein Obama.

That Anonymous Coward (profile) says:

DoJ is now stocked with lawyers who worked for different cartels, the most recent one to show how bad an idea this was was the former (? one does wonder) BSA lawyer who brought the indictment against MegaUpload who has somehow decided that a clear civil law has criminal punishments and is fighting battles that other countries have to follow US law but the US doesn’t need to and violated the law stealing evidence.

There are more of these timebombs waiting to be discovered.

Anonymous Coward says:

Big question is just how much is Steele and the other copyright scum paying this judge in brown envelopes to say all this crap?

Yes thats right, Judge Howell, someone is directly and actually accusing you of taking bribes from copyright firms to identify people BEFORE the case is assessed for reasonableness, followed by a cut of the profits once the defendants pay up

Violated (profile) says:

Little Devils

It has been clear enough that the US Administration has not so long ago promoted certain people into key jobs to better aid their War on Infringement.

Judge Beryl Howell is clearly one of these people being a pro-copyright shill now working hard to turn back the court rulings of other Judges. A nice position for her to hammer away at evil infringers, innocent or guilty, or just people who get in her way.

I can only hope that other Judges see Beryl Howell for who she really is and they take steps to minimise her political interference in the Justice system.

To make matters worse Judge Beryl Howell is clearly disillusional where as seen above many things is quotes is totally against known reality. I am not even sure if that makes her dangerous or harmless when that depends on what other Judges let her get away with.

In any case I hope people do vote out Obama just so we can get rid or Joe Biden and other people like Judge Beryl Howell would soon be replaced as well. That is US politics for you.

Anonymous Coward says:

I can only begin to wonder what praise would have been heaped upon Judge Howell had she sided with the ISPs for the reasons articulated by others of her judicial colleagues. Would that have made her an insightful and impartial judge? Almost certainly “yes”. Yet, because her analysis of the FRCP is different, she is a mere copyright shill incapable of being impartial, and thus deserving of a shrill and insulting screed.

Contrary to the numerous statements in this article attempting to portray the judge as nothing more than a judicial advocate of copyright law, irretrieveably biased in favor of righs holders, all of her decisions were based entirely upon points of law associated with interpretations of the FRCP, pure legal issues, and certifying them for an interlocutory appeal for appelate court guidance is precisely what should have been done.

The truth be known, members of the judiciary can in good faith hold different opinions of how to interpret a provision of law, and I see this as a good thing as it places focus on areas of law where reasonable minds can differ and applelate guidance is entirely appropriate.

Some Anonymous Guy (profile) says:

Re: Re:

So you’re saying that her ruling is a fair application of the law? Strict interpretation, who cares what other judges have said that directly contradict her? Judges who see what these lawsuits really are. It’ll get hashed out in the appeals court anyway.

Yeah, so Howell’s analysis of the FRCP is “different.” I wouldn’t consider “strict interpretation” to be synonymous with “analyzing.” She is well aware that she is facilitating extrajudicial extortion, yet she couldn’t care less. Why? Who knows. Maybe she’s hell-bent on “sticking it” to copyright alleged copyright infringers, or maybe she’s just following the letter of the law. I highly doubt the latter since last year involving three USCG cases, she consolidated them because they were substantially similar. Then she ruled that forcing the plaintiff to file individual lawsuits (against a few thousand Does) would cost too much money which would “further limit their ability to protect their legal rights” so she did not ruled against motions to sever. Where is “rulings shall be based on saving the plaintiff money by joining as many defendants as possible” in the FRCP? Where are the legal rights of Doe defendants in these cases? Oh, yes, they have no rights and Howell has explicitly stated that more times than I can count. As far as IP geolocation goes, that’s not accurate because she says so. However it’s accurate enough for the plaintiffs to use in justifying their complaints but not for the defendants to use to argue lack of personal jurisdiction. Right, not defendants because they haven’t been properly joined and served. She also doesn’t follow Rule 4(m), ever. Some of these cases on her docket have been going on for almost a year, well past the 120 day “name and serve process or dismiss” rule. Does she seem to care? Nope. If she was truly following the letter of the law, these cases would have been dismissed months ago. She conveniently adheres to certain Rules contained within the FRCP, and conveniently ignores others.

You completely ignore that she has a massive conflict of interest, lobbying on behalf of the RIAA directly to members of Congress, meeting with members of the Obama administration, and possibly meeting with Obama himself. Then Obama nominates her to the bench and she breezes right through the confirmation process? She was paid $60k in 2005, $140k in 2006, $110k in 2007, and $105k in 2008 for her RIAA lobbying efforts. In case your math is fuzzy, that’s $415,000 over four years. Just based on that, she should be recusing herself from any of these lawsuits that hit her docket because of any possible conflict of interest or bias, even if it doesn’t exist. But no, it doesn’t stop at RIAA lobbying. She also helped draft the DMCA and was also very involved with the PATRIOT Act, as well as other laws involving wiretaps, amending the CFAA, TEACH Act, and numerous others involving intellectual property and copyright/patent/trademark infringement. One could also argue that she’s violated the rules of recusal. By not recusing herself voluntarily, she’s created this problem that has racked up massive legal expenses and will be required to be heard by an appeals court. More legal expenses for a frivolous lawsuit.

Mike Masnick (profile) says:

Re: Re:

The fact that she flat out lied about the GAO report says quite a bit, doesn’t it?

This was not just about her ridiculous and laughable interpretation. Furthermore, much of her discussions was on the DMCA’s safe harbors, which is meaningless here because the plaintiff did not even make use of the takedown process.

Look, there are plenty of judges whose rulings I disagree with whose motives I don’t question. But when a judge gets things so obviously wrong… and has the history she has… it seems reasonable to raise the questions, don’t you think?

Oh wait. You don’t think. I remember.

Anonymous Coward says:

Re: Re: Re:

Did you by change catch the part of her opinion discussing the “evidence” presented by the defendants concerning “undue burden”? She could have stopped there, but at the motion hearing apparently gave the ISPs the opportunity to present a “live” witness to further elaborate on their arguments. This was not a mandatory requirement, and yet she did it anyway, which to me cuts against the grain of the article and the conclusions drawn by its author.

Certifying a decision for interlocutory appeal lies within the sole discretion of the presiding judge. Such certification likewise cuts against the grain.

As I noted, the issues were all procedural matters associated with the Federal Rules of Civil Procedure. Just because other judges may view some of them differently does not mean they are right and she is manifestly wrong.

I have no problem with anyone mentioning a person’s legal curriculum vitae. It is quite another matter, however, to immediately conclude that such a person must be biased and his/her decisions are not to be trusted. That is a leap of “logic” resting upon an infirm foundation.

Sadly, you conclude with a gratuitous aspersion that has nothing to do with the merits of the judge’s decision on the cross-motions. It ill serves encouragement of further discussion.

Mike Masnick (profile) says:

Re: Re: Re: Re:

Looks to me like there’s plenty of “further discussion” here. It’s just that you don’t like the direction it has gone it, which fits with your usual commenting MO on this site. The second people start proving your pet theories wrong, you lash out with something that’s generally flat out wrong and then pretend you never said that.

I’d argue, frankly, that it’s you who “ill serves encouragement of further discussion” around here by always stating things that are blatantly wrong.

I wonder if you do that on purpose, or if you’re really just that clueless.

Anonymous Coward says:

Re: Re: Re:2 Re:

Yes, there has been “further discussion” here, but precious little of it deals with the case itself. Of the comments that do talk about the case, most appear to be little more than screeds against the judge herself, questioning her judicial compentency on bases having nothing to do with the case at hand.

As for the remainder of your comment, it bears no relationship to this particular article.

Some Anonymous Guy (profile) says:

Re: Re: Re:3 Re:

She may have given the ISPs an out, but given the fact that, earlier this month, Prenda has sued two of the ISPs involved as well as an employee of each firm. How is performing 1,058 IP lookups NOT an undue burden? Do you know how much that costs? Comcast had to set up a new division to comply with all of these subpoenas flooding in. Time Warner has stated that it costs them $45 per IP and it’s been estimated that it costs AT&T $100 per IP, not to mention the time, computing resources, and extra employees needed to do all of this.

She may have certified an immediate interlocutory appeal but the genie’s out of the bottle. I would be happy if she had stayed the issuance of third-party subpoenas until a decision comes down from the appeals court. She knowingly hands over thousands of peoples’ personal information to lawyers who will harass the hell out of them for a year or more, even if dismissed. Then she says “well, I’m gonna let you appeal the decision I just made to let Paul Duffy and John Steele have the personal info of 1,058 people.” Another alternative, she could have allowed limited discovery. Names and addresses only, no phone numbers or email addresses. Enough to name and serve since that’s the purpose of these suits, right? I would be fine with that. Since they hardly ever name and serve, no big deal there.

The only reason why I question her CV is because if you’re doing something for so long, you develop a bias. Such as myself. I didn’t care about regulation until I began doing audit work…now I HATE regulation because it makes my job so much more taxing. I’m not saying she was indoctrinated. I’m saying that she could possibly be biased and that is enough for a recusal.

“Sadly, you conclude….” Really? Do you believe that my vocabulary consists of 200 words or less? We disagree which is fine since it’s been civil up until now. Why do you feel compelled to insult my intelligence now? You have NO IDEA who I am, how educated I am, or have any other detail about me except that I’m not an attorney (no shit?) and that I’m obviously biased in favor of the defendants in these cases because I got caught up in one of these cases that has long since been dismissed and maintain my innocence to this day.

Anonymous Coward says:

Re: Re: Re:5 Re:

Footnote 15 to the decision on the motions reflects the suspension of discovery until the appeal is heard. I have not seen the docket, but by your comment it sounds as if the case is currently stayed.

Threaded view shows that my “Sadly,…” comment was directed to another person.

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