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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  •  
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    Jay (profile), Apr 11th, 2011 @ 7:27pm

    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...

     

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    Beta (profile), Apr 11th, 2011 @ 7:34pm

    O tempora, o mores!

    Is there anything more reprehensible than a judge who won't stay bought?

     

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      identicon
      Anonymous Coward, Apr 12th, 2011 @ 12:36am

      Re: O tempora, o mores!

      A judge who makes judgments based upon their ideas/morales/beliefs instead of the facts of the case.

       

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        Mike42 (profile), Apr 12th, 2011 @ 7:23am

        Re: Re: O tempora, o mores!

        Making a judgment based on ideas or beliefs, yes. Morals are a different issue. If we didn't consider morals important, we would never consider using a jury.

         

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    identicon
    Anonymous Coward, Apr 11th, 2011 @ 7:55pm

    If not for those meddling kids she would have gotten away with it.

    *giggle*

     

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    identicon
    Anonymous Coward, Apr 11th, 2011 @ 8:15pm

    Impeach him!

     

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    FUDbuster (profile), Apr 11th, 2011 @ 8:19pm

    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?

     

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      identicon
      Anonymous Coward, Apr 11th, 2011 @ 8:33pm

      Re:

      so do you get paid by the word, or by the logic failing post? just curious how your RIAA masters pay you...

       

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      Jay (profile), Apr 11th, 2011 @ 8:36pm

      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.

       

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        FUDbuster (profile), Apr 11th, 2011 @ 8:43pm

        Re: Re:

        And she's allowing the "quest" to go on: She's letting the plaintiffs file amended complaints with an invitation to add as many more defendants to the suit as they please. How this is "backpedaling" is beyond me.

         

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          Jay (profile), Apr 11th, 2011 @ 9:11pm

          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.

           

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        wvhillbilly, Apr 12th, 2011 @ 7:04pm

        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.

         

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      FUDbuster (profile), Apr 12th, 2011 @ 6:02am

      Re:

      Care to explain?

      Crickets....

       

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        Ron, Apr 12th, 2011 @ 6:14am

        Re: Re:

        You hear crickets because you are standing there talking to all the people that think your intellegent! Nobody has to explain anything to you. Everyone here is smart enough to read and draw their own conclusion without having to ask other people stupid questions.

         

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        Nicedoggy, Apr 12th, 2011 @ 6:19am

        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?

         

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          Jay (profile), Apr 12th, 2011 @ 6:52am

          Re: Re: Re:

          Doggy, small disagreement...

          It's not that she has a lack of experience, it's her background that makes her incredibly biased.

          Other than that, you're spot on.

           

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        FUDbuster (profile), Apr 12th, 2011 @ 8:06am

        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.

         

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          Nicedoggy, Apr 12th, 2011 @ 9:35am

          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?

           

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          Nicedoggy, Apr 12th, 2011 @ 9:35am

          Re: Re: Re:

          *woman

           

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      Nicedoggy, Apr 12th, 2011 @ 6:09am

      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.

       

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    Anonymous coward, Apr 11th, 2011 @ 8:44pm

    How has she not been removed from these cases?

    Frankly, why is she allowed to even continue to be a judge? Her motivations have clearly been exposed.

    What are the governing bodies that oversee this type of corruption? Let's contact them and demand she be repremanded.

     

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      Anonymous Coward, Apr 12th, 2011 @ 7:08am

      Re:

      How has she not been removed from these cases?

      Because not everyone is as dishonest and biased as the people on Techdirt.

      We know that's how you people live your life; that doesn't mean everyone else behaves the same way.

       

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        coldbrew, Apr 12th, 2011 @ 8:00am

        Re: Re:

        Then quit visiting the site, you psychotic piece of shit. I bet most frequent TD readers have more integrity in their pinky fingers than you have in your whole body.

        Ever heard of Hollywood accounting? Yea, real integrity there.

        Are you a sith lord?

         

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        Ron, Apr 12th, 2011 @ 10:47am

        Re: Re:

        What a dick you are. I bet your a Lawyer.

         

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    Pixelation, Apr 11th, 2011 @ 9:17pm

    Real question

    So when a judge doesn't recuse him/her self, who exactly is supposed to step in and do it for them? Why are they not doing so in this case?

     

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    r, Apr 11th, 2011 @ 9:46pm

    I wonder how often this happens

    Where are the checks in our judicial system? How can something like this happen? How much corruption is there in our current court systems?

     

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      Atkray (profile), Apr 11th, 2011 @ 11:16pm

      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.

       

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      The eejit (profile), Apr 12th, 2011 @ 12:03am

      Re: I wonder how often this happens

      More than in Egypt, Nigeria and Somalia combined.

       

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        Rookie, Apr 13th, 2011 @ 1:40pm

        Re: Re: I wonder how often this happens

        @The eejit "More than in Egypt, Nigeria, and Somalia combined."

        You are either very ignorant of the judicial system in those countries, or of the US judicial system.

         

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    Jay (profile), Apr 12th, 2011 @ 5:14am

    Maybe the first time,

     

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    Killer_Tofu (profile), Apr 12th, 2011 @ 5:54am

    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.

     

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      coldbrew, Apr 12th, 2011 @ 6:33am

      Re: The Connection

      How much for the bridge?

       

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        Killer_Tofu (profile), Apr 12th, 2011 @ 10:30am

        Re: Re: The Connection

        Do you want the one over in California or the one in Florida? The one down in Florida runs about 2 million and California is only 250 thousand because it is shorter.

         

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      JEDDIAH, Apr 12th, 2011 @ 6:34am

      Looks like a duck, walks like a duck...

      Even before she was outed as an industry shill, her judgements were rather conspicous when compared to the rest of the judiciary. That is why her original judgement got so much attention to begin with.

       

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    Jim L, Apr 12th, 2011 @ 6:21am

    streisand effect?

    Trying to hide her bias? Perhaps a bit like the Streisand Effect for justice?

     

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    Paul Alan Levy (profile), Apr 12th, 2011 @ 2:51pm

    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.

     

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      Jay (profile), Apr 12th, 2011 @ 10:28pm

      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.

       

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    the old rang (profile), Apr 12th, 2011 @ 3:52pm

    Keep in mind what she 'taught...'

    Quoting from:

    http://www.dcd.uscourts.gov/dcd/howell

    Judge Howell has taught Legal Ethics as an adjunct professor at American University’s Washington College of Law.

    I will not venture her 'politics' but I know the White House may be interested...

     

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    the old rang (profile), Apr 12th, 2011 @ 4:13pm

    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...

     

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    the old rang (profile), Apr 12th, 2011 @ 4:20pm

    One last PS:

     

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    the old rang (profile), Apr 12th, 2011 @ 4:25pm

    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,

     

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    Paul Alan Levy (profile), Apr 13th, 2011 @ 3:39pm

    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.

     

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    johndoe1zero1 (profile), Apr 17th, 2011 @ 12:23pm

    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.14 1583.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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