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| Judge Kimball's Order Re Briefing; Shepardizing & Groklaw's Purpose |
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Saturday, August 14 2004 @ 09:59 AM EDT
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Here, as promised, is Judge Kimball's Order Re Briefing for Pending Motions, granting the parties more time to get their motion papers filed. The court notation listed it as on "IBM Stipulation" and I wondered why. But the order is very clear, that it was on stipulation by both parties. Just another example that you have to go by the actual court document, not the clerk's notation, or you can get confused. Just an incredible flurry of activity, and no wonder. Both sides realize this could be the ball game, so naturally they are putting their heart into it and trying to get it right. Also, some of the flurry is because of SCO, as IBM pointed out, filing more than once on the same request.
The hearings will be in September, but the hard work for the lawyers is now, researching and preparing the motion papers, which the judges will read prior to the hearings. You may remember at the December hearing with Judge Wells that she opened the hearing telling the parties what her position was likely to be, based on the papers she had read and research she had done after reading them, and then gave them both an opportunity to change her mind: "JUDGE WELLS: Gentlemen, let me indicate, as we begin, that I have reviewed your
submissions, I have reviewed what I believe to be the pertinent case law in
this matter and I have reviewed the affidavit that was submitted by Mr.
Shaughnessy. And I've also taken note of the statements that are included
in the submissions which indicate that certain representations have been
made by SCO to the media.
"Based upon my review of those items, I would tell you what my intention is
today so that we can then focus the argument towards that particular end.
As I've stated, and based upon my review of those items mentioned, it would
be my intention to grant defendant IBM's motion to compel answers as to both
sets of interrogatories, and to require plaintiff SCO to file responses to
these interrogatories or affidavits indicating that they are unable to do so
and why within 30 days of the entry of this order. I would further intend
on directing that IBM's responses should correct those deficiencies that are
set forth in the defendant's addendum which was filed on 11-4 of this year,
and that is to include answers to Interrogatories No. 12 and 13. Now, in
the interim, it would also be my intention to otherwise postpone all other
discovery until such filings have been and compliance has been achieved. . . .
All right, given
that as my intended plan today, then I would ask counsel to focus your
arguments as to why or why not I should not implement that plan." So you can see that the papers matter. SCO tried to change her mind, but it failed. At SCOForum, I hear there was a mention of SCO being praised by Judge Wells for complying with discovery in good faith, but back in December, many months prior, you can see that was not her view at all. SCO glosses over that part of the discovery process in their papers too, so it is good to review. By the way, the lawyers that handle the oral arguments are not necessarily the ones that write the briefs. They would of course be involved, usually, and sometimes they do both, but it is two different skills. Legal writing is a skill all its own. An attorney could be a brilliant writer but not so good at oral argument, and vice versa. And of course all of it is based on strategy, and that comes before you do anything else. You first do research, then you plan the strategy based on the facts of the case and what your research showed you your strengths and weaknesses are, and only then do you begin the writing or arguing. Obviously, there can be adjustments as you go along, but the theme is there from the beginning. They know what they will argue and write the papers accordingly. Shepardizing By the way, when you are doing actual legal research, you don't just find a case and that's that. You have to shephardize it, meaning you have to look in the case law records in Shephard's Citations to see if it is still good law. For example, you might have a case that wins at the lower court level, but gets overturned on appeal. If you were writing a legal brief, or worse, basing your entire legal theory on that lower court decision, you are in trouble. First, you'd get laughed at. The other side would be thrilled, of course, and would make sure to make it known to the judge, and then you'd lose. Bad law is worse than no law. So when you find a case by researching in encyclopedias, treatises, and other sources, you have to shepardize it carefully, and they teach entire classes on how to do it. Even then, you have to be careful, because nuance is missing from Shepard's Citations. By that I mean, a case might have been overturned on appeal, but maybe not on the point you are researching. Also, you may find that a case has not been overrruled, but if you check all the cases and authorities criticizing, distinguishing, limiting and questioning it, you may realize that it might as well have been overruled and probably it eventually will be and in the meantime, it's not a good case to use because no court is going to view it as controlling precedent. Also, cases in your jurisdiction matter most to you. You also need to Shephardize the statutes you are relying on too, to make sure you have the latest, and to see how it has been treated by the courts. You can shephardize online now, but it will cost you. Alternatively, your local courthouse law library will likely have the volumes. If there is a law school in your area, and if they allow the public in, they would have Shephard's Citations also. But be careful. Sometimes they are not up-to-date. Remember the Boies Schiller Jurisline case trying to break up the Lexis-Nexis stranglehold on legal research? Unfortunately it failed, so it's pay Lexis or drive to the courthouse and hope they have a current set of volumes. You will notice that even the Judge's Order has a glitch this time, leaving out a word in the sentence referring to IBM's Cross Motion for Partial Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement. The word "on" is missing and probably intended. The actual title of the motion is Defendant/Counterclaim-Plaintiff IBM's Cross-Motion for Partial Summary Judgment on its Claim for Declaratory Judgment of Non-Infringement, so you can see why one would want to refer to it colloquially. I have not corrected it, though, as it is Groklaw's policy to present the documents exactly as they are filed, mistakes and all, so we have as accurate a record for the permanent archives as possible, with the awareness that law students will undoubtedly be studying this case for a long time to come, as will historians. Groklaw's Purpose Groklaw is not a discussion board, although it's enjoyable and sometimes useful to have discussions along the way, or a blog or entertainment, though I try to make it funny and a pleasant experience. It's as complete a record as I can make it of this historic case, with all significant details recorded for history. That is why we have SCO Archives, a chronological listing of what happened by date. We have the IBM Timeline and one for Novell and Red Hat too, with all the legal documents and the dates they were filed, and we have the Legal Docs page also, which is currently in process of being updated and rearranged. All the legal documents filed are available as PDFs and as text, for the visually-impaired, who can have difficulty with PDFs, I've been told, and so that they can be searched by keywords using our Search utility. All that work is done by volunteers, some of whom go to the court to pick up documents and exhibits, some scan, some transfer from PDF to plain text, some do the HTML, some research, some send me links to stories worth covering, some attend court hearings and give us reports. Groklaw is also an anti-FUD site. And I hope it's a place to grok enough of the law, so if anyone has any information that could be useful, they know where to bring it. That is the purpose of the Legal Links page, to show you where you can find legal information, and that is where you will find links to all the relevant courts too. We also have the Quote Database, so you can find specific quotations by the principals in the SCO story, which is updated by volunteers. Also, we offer transcripts of the hearings, teleconferences, of media interviews and public appearances, when we are able to obtain necessary permission. Groklaw isn't Slashdot and it isn't the New York Times or the Drudge Report. It's a working site, thousands of people -- more than 7,000 now -- working together as volunteers, applying open source principles to chronicling the SCO legal assault on the FOSS community and trying to help to defeat what we believe is a wrongful attack. Groklaw is a non-commercial site. I am a volunteer too. I can tell you I've never worked so hard in my life, because I work for a living and do this in my free time afterward. Mathfox is a volunteer too. We are all volunteers. It's our way of saying thank you for software that the community wrote and gave as a gift to the world. My concept was this: Many of Groklaw's readers know the history of UNIX and the SCO/Caldera history too, because they were there. They lived it. So my idea was that if I explained what would help, they would know where to find historical evidence that could make a difference. And it has happened just that way. Groklaw is not like any other site. It's sui generis, unique in its goals and purposes. So far as I know, it's never been done before, which is the creative fun of it. I am explaining all this, and showing all that we do and offer, because we have hundreds of new members since SCOForum and a lot of new visitors, too, and many of you may not know all that is available here. Enjoy our hard work. And feel free to participate.
*********************************
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________
THE SCO GROUP, INC.
Plaintiff/Counterclaim-Defendant,
vs.
INTERNATIONAL BUSINESS MACHINES CORPORATION
Defendant/Counterclaim-Plaintiff.
_______________________________
ORDER RE BRIEFING FOR PENDING
MOTIONS
Civil No. 2:03CV0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke Wells
______________________________
Based upon the stipulation of the parties, and good cause appearing,
IT IS HEREBY ORDERED as follows:
IBM's Reply Memorandum in Support of its Cross-Motion for Partial Summary Judgment its Claim for Declaratory Judgment of Non-Infringement shall be due on August 23, 2004;
SCO's Reply Memorandum in Support of its Motion to Dismiss or Stay Count Ten of IBM's Second Amended Counterclaims Against SCO shall be due on August 23, 2004;
SCO's Reply Memorandum in Support of its Renewed Motion to Compel shall be due on August 26, 2004;
SCO's Memorandum in Opposition to IBM's Motion to Strike the Declaration of Christopher Sontag shall be due on August 26, 2004; and
IBM's Reply Memorandum in Support of its Motion to Strike the Declaration of Christopher Sontag shall be due on September 7, 2004.
DATED this 13th day of August 2004.
BY THE COURT:
_____[signature of Dale A. Kimball]_____
United States District Court
APPROVED AS TO FORM:
SNELL & WILMER LLP
Alan L. Sullivan
Todd M. Shaughnessy
CRAVATH, SWAINE & MOORE
Evan R. Chesler
David R. Marriott
BY ________[signature]_______
Counsel for Defendant International
Business Machines Corporation
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
By________[signature]_______
Counsel for Plaintiff
United States District Court
for the
District of Utah
August 13, 2004
CERTIFICATE OF SERVICE OF CLERK
Re: 2:03-cv-00294
True and correct copies of the attached werre either mailed, faxed or emailed by the clerk to the following:
Brent O. Hatch, Esq.
HATCH JAMES & DODGE
[address]
Scott E. Gant, Esq.
BOIES SCHILLER & FLEXNER
[address]
Frederick S. Frei, Esq.
ANDREWS KURTH
[address]
Evan R. Chesler, Esq.
CRAVATH, SWAINE & MOORE
[address]
Alan L. Sullivan, Esq.
Snell & Wilmer LLP
[address]
Mark J. Heise, Esq.
BOIES SCHILLER & FLEXNER
[address]
Mr. Kevin P. McBride, Esq.
[address]
Robert Silver, Esq.
BOIES SCHILLER & FLEXNER
[address]
Mr. David W Scofield, Esq.
PETERS SCOFIELD PRICE
[address]
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| Authored by: entre on Saturday, August 14 2004 @ 10:45 AM EDT |
| Corrections Here Please [ Reply to This | # ]
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| Authored by: AntiFUD on Saturday, August 14 2004 @ 10:45 AM EDT |
This apparently is the second time around for this story, so we know about the
missing "no"!
---
IANAL - But IAAAMotFSF - Free to Fight FUD
[ Reply to This | # ]
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| Authored by: Latesigner on Saturday, August 14 2004 @ 10:46 AM EDT |
Go PJ!!!
You keep doing it and we'll keep helping(and sending money).[ Reply to This | # ]
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| Authored by: AntiFUD on Saturday, August 14 2004 @ 10:48 AM EDT |
Trolls and Astroturfers
Thanks
---
IANAL - But IAAAMotFSF - Free to Fight FUD
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, August 14 2004 @ 10:52 AM EDT |
| . [ Reply to This | # ]
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| Authored by: mjreilly on Saturday, August 14 2004 @ 10:52 AM EDT |
| Such as:
s/Sontage/Sontag/
IBM's Reply Memorandum in Support of its
Motion to Strike the Declaration of Christopher Sontage
Sontag shall be due on September 7, 2004.
[ Reply to This | # ]
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| Authored by: PJ on Saturday, August 14 2004 @ 10:58 AM EDT |
| This article is one of the three that disappeared today. It appears to be a PHP
issue. Here is one comment that someone emailed me from their cache, and
feel
free to add any that you have to try to reconstruct it all again:
the
goals of Groklaw
Authored by: Anonymous on Saturday, August 14 2004 @
05:30 AM EDT
PJ, your last two paragraphs are a timely and very clear
reminder of the
purposes of Groklaw.
I was delighted to see that you also
defined it also as an anti-FUD site.
The fight for open source has two important
dimensions, legal and public
perceptions. It would be a tragedy to win the legal
case but lose in the
court of public opinion.
Long years of service in the
corporate world have taught me that executives
are poorly read and badly
informed about newer developments in technology.
For the most part they rely on
inputs from their major partner/suppliers to
guide and inform them. In this
kind of world technology myths of the kind
being put out by MS are surprisingly
persistent and influential.
This is where we will have to put in a major
effort. MS understand this very
well and are ramping up a large and costly
FUD/astroturfing campaign.
Peter Smith. [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, August 14 2004 @ 01:49 PM EDT |
Groklaw's purpose . . . creative fun of
it.
Taking these paragraphs and putting them behind an 'About'
link in the sidebar immediately below the current 'Home' link would be a great
idea.[ Reply to This | # ]
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| Authored by: Weeble on Saturday, August 14 2004 @ 01:55 PM EDT |
Well, the Florida branch of the Groklaw Storm Team is starting to emerge. (See
"Munich Posts Want Ad..." for the original thread.) Lake County came
out in good shape due to Charley's early turn to the northeast--we just got wind
and rain, nothing too serious. We are getting thunderstorms in the aftermath of
Charley, and Lake & Sumter Counties are under a tornado warning at the
moment.
However, the corridor from the Sanibel Island/Punta Gorda area (north of Fort
Myers) thru Orlando and Daytona Beach had some serious damage and probable
serious loss of life--it's being compared with Hurricane Andrew of a few years
ago as well as with Hurricane Donna from 1960 which caused the equivalent of $2
billion (in today's dollars) in damage and about 50 deaths. So far there are 15
deaths confirmed statewide and $2.3 billion in damage in Lee County alone, and
they're just starting to find out what the situation is.
I'd like to hear (either as a post here or via email) from any folks in the
corridor, esp. folks in and around Orlando. Power's out bigtime around there,
and I'm wondering how things are on the east side of Orlando around Dean
Road--that's where my brother and his family lives.
Looks like Charley's going to go right up the eastern seaboard (including your
back yard, PJ!). Keep us informed on how things go as Charley rolls past you
all. From the projection at the NOAA site, looks like the North Carolina coastal
islands will be getting it soon.
---
MS Windows doesn't HAVE security holes--it IS a security hole.
[ Reply to This | # ]
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- Good to see you back. - Authored by: Anonymous on Saturday, August 14 2004 @ 05:09 PM EDT
- The Groklaw Storm Team Resurfaces--Next Shift? - Authored by: Anonymous on Saturday, August 14 2004 @ 07:47 PM EDT
- The Groklaw Storm Team Resurfaces--Next Shift? - Authored by: darthaggie on Sunday, August 15 2004 @ 12:06 AM EDT
- Charleston, SC storm watch - Authored by: Anonymous on Sunday, August 15 2004 @ 12:19 AM EDT
- Punta Gorda, Florida - Authored by: Totosplatz on Sunday, August 15 2004 @ 12:31 AM EDT
- Bradenton, FL - Authored by: Anonymous on Sunday, August 15 2004 @ 02:31 AM EDT
- The Groklaw Storm Team Resurfaces--Next Shift? - Authored by: johan on Sunday, August 15 2004 @ 06:36 AM EDT
- The Groklaw Storm Team Resurfaces--Next Shift? - Authored by: hipster on Monday, August 16 2004 @ 04:11 PM EDT
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| Authored by: Thomas Frayne on Saturday, August 14 2004 @ 04:33 PM EDT |
| So SCOG was able to keep the price up to 4.05 on Friday, because, until SCOG's
arguments against the PSJ are examined, they look plausible. Expect another
drop of 10% or more when the contents of IBM's reply become widely known, a
larger drop when the transcript of the September 2 hearing on SCOG's "renewed"
compel motion appears, a very large drop when the transcript of the September 15
hearing on the PSJ appears, and a plummet off the cliff when the court rules on
the PSJ. Even a ruling that denies the PSJ might have this effect, since SCOG's
legal cards are now on the table, and we can see the busted flush.
I am
trying to anticipate what arguments IBM will be making next Monday. I feel that
if IBM gets one clue that it overlooked by 3:00 MT on August 16, it will be
worth it.
My latest comments in the LQWiki pages summarizing the arguments
that IBM and SCOG made about the PSJ are in
PSJ-PromptAdjudication. Here is a summary of my comments so far. Follow
the link to find the comments themselves. (They are in sections listed in the
table of contents.)
* TF01 - SCOG's "good faith", need for further
discovery. IBM's basic argument in favor of the PSJ.
* TF02 - SCOG defied
two court orders and lied in its affidavits.
* TF03 - IBM holds that SCOG
claimed to have provided all the non-privileged information in its possession or
control that was required by the court order. SCOG did not do this, and lied in
its affidavits.
* TF04 - The proof of SCOG's bad faith, blatant and willful
defiance of two court orders, and lying in affidavits is presented in
TF02.
* TF05 - A just sanction for defying two court orders ...
* TF06 -
Ehrenhaus requirements are satisfied.
* TF07 - The case has included SCOG's
false PR, claiming that IBM's Linux activities infringed SCOG's copyrights, from
the beginning. Lanham Act claim
* TF08 - Opportunity to adduce
evidence
* TF09 - The PSJ is not premature, SCOG has wasted the ample time
it had to do discovery and take depositions on this issue. The compel and 56(f)
motions.
* TF10 - Procedural Posture: SCOG argues that it will need expert
witnesses
* TF11 - See TF10 - expert testimony not needed to decide the
issue for the PSJ.
* TF12 - None of the cases that SCOG cited involve a
compel motion or a 56(f) motion filed solely to delay adjudication of a single
issue of a case.
* TF13 - The Materials SCO Has Filed Pursuant to Rule
56(f), far from compelling Denial of IBM's Motion, are evidence that the motion
should be granted, since these materials do not identify closely enough the
probable facts that it admitted being required to identify. Also, SCOG did not
satisfy the conditions placed in the March court order for consideration of
further discovery. The materials also are evidence that SCOG defied the March
court order by withholding required non-privileged information in its possession
or control. Finally, IBM has fully complied with the March court order, and
certified in detail that it did so.
[ Reply to This | # ]
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| Authored by: JeR on Saturday, August 14 2004 @ 04:41 PM EDT |
|
http://www.xs4all.nl/~rooversj/AZ-35.pdf.html is an HTML-formatted
transcription of judge Jones's August 6, 2004 order in the AutoZone case (as
PDF). ---
non-breaking space [ Reply to This | # ]
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| Authored by: darkonc on Saturday, August 14 2004 @ 05:25 PM EDT |
| Reading your robots.txt file, it
would appear that you ONLY bar Googlebot and ia_archiver, while other robots
are only banned from certain sections.
In any case, the point that someone
else left that CEO types (who really make the decisions for large companies)
tend to be rather thinly read -- the idea of having what GrokLaw is doing not be
available on the most-searched source of information seems rather
counter-productive.
Now I realize that you want to protect peoples' privacy,
but given that - This is a public project, and
- The most
privacy-invasive bots are likely to give relatively short shrift the robots.txt
file
I don't think that there's much real value to blocking
Google.
Besides, anybody who's really worried about privacy is
probably posting as anonymous (or pseudononymous) anyways.
---
Powerful,
committed communication. Touching the jewel within each person and bringing it
to life.. [ Reply to This | # ]
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| Authored by: Simon G Best on Saturday, August 14 2004 @ 06:31 PM EDT |
I am explaining all this, and showing all that we do and offer,
because we have hundreds of new members since SCOForum and a lot of new
visitors, too, and many of you may not know all that is available
here.
Ah, it sounds like The SCO Group and Rob Enderle have
been making the classic mistake of drawing attention to their
'enemies'.
From what I understand, one of the things that helped Labour
lose the UK General Election in 1979 was that they kept on going on about those
posters which the Conservatives had, which said, "Labour isn't working." The
more they ranted about those posters, the more they brought the Conservatives'
message to the attention of the electorate.
At SCOForum, Rob Enderle and
The SCO Group managed to score a similar own-goal, it would seem. The more
extreme the aspersions they cast, the more people will decide to see for
themselves. The more people decide to see for themselves, the more they'll see
just how unreliable Rob Enderle is, and just how hopeless The SCO Group's
law-suits are.
Well done Rob! Well done Darl!
And, of course,
well done PJ and the rest of the Groklaw Gang :-D
---
Open and Honest
- Open Source
[ Reply to This | # ]
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| Authored by: cab15625 on Saturday, August 14 2004 @ 09:23 PM EDT |
PJ,
Just a thought, but since there are more new people coming here every day,
perhaps it would be worthwile having some sort of intro page. As it is right
now, it would be somewhat daunting for a newcomer. The sort of thing I would
put are
1) Mission statement - like what you have at the end of this article
2) Description of all the links at the top
3) Big shiney link to the intro page that says something like
"introduction" or "start here" or something. Actually, MS
might have a trademark on the word "start" so "introduction"
it is.
The reason I say this is that I got a call from my step-dad who's shop has
recently started converting to Linux/SAMBA for their internal file and print
serving. Somehow it took this long for him to hear about SCO and co. so he
called me up all worried. I told him not to worry and sent him here to see why.
He called me right back saying there's too much and could I just sum it up for
him. I guess the point is that we're not very effective as a FUD-buster if we
scare the FUD targets away before we can defuse them.
Anyway, I'm sure there are those more qualified than I, but I could probably put
together a rough draft of something if nobody else volunteers.
Slackin' since 4.0[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, August 15 2004 @ 12:09 AM EDT |
We thank you, Pamela, as well as all the selfless volunteers working with you to
make Groklaw a reality.[ Reply to This | # ]
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- Seconded - Authored by: Anonymous on Sunday, August 15 2004 @ 01:08 AM EDT
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| Authored by: Anonymous on Sunday, August 15 2004 @ 01:56 AM EDT |
James Dimmons is a limited man. He is not very big, not very smart. He
has only a few years of school. What little family he has is not much help to
him. Indeed they are like him. If he is considered employable, it is not the
type of job one can live on. Years ago he won a serious dispute on the street
regarding a matter that could never be settled in court. The result was a
manslaughter conviction with eight years on the front end, and at least 8 more
if he fouled up his parole. Some time during his eight years some one decided
he was a schizophrenic and put him on medication.
Upon his release working was a problem. Given his record no one wanted to
hire him. He was always up front about his record. He didn't want to live on
an SSI check if he didn't have to, but that was looking like the only way he
could make it. Just doing all he had to do for parole was almost a job in
itself. It interfered with job hunting and some possible jobs. He had to
report to the parole office. He had to go for drug testing. Then he also had
to go for his mental health counseling and treatment, pills or shots without
fail. He was doing the best he could. He had been on parole eight months with
no violations, no missed appointments, tests or calls.
Not finding work for months on end was discouraging. But he tried to make
himself useful. For no apparent reason he remained positive and upbeat. Maybe
it was the drugs. He started hanging around an old market where vendors would
set up booths both inside and outside. He made himself known. He volunteered
to clean up. He offered to help the vendors. He was not a nuisance. Some of
them used him to help set up their tables. Some even hired him to set up early
and guard their spots. Some even had him watch their tables. The next step
would be letting him sell and collect money.
These vendors could vary their wares but each would stock a base he or she
knew would sell. One of his regular patrons asked him to watch his table one
slow weekday morning and James eagerly complied. A gentleman passed by and gave
his wares a quick look but was obviously not interested in buying. His table
was stacked with CD's, video cassettes and DVD's.
The gentleman left abruptly and soon returned with a city police officer in
tow. He pointed the goods out to the police officer who dutifully arrested
James.
In the lock up James feared he was in for years again. However his charge
had never been seen before and the parole officer didn't ask to have him held.
Or maybe he was unreachable. The judge was also reasonable and overwhelmed with
drug and weapons offenses. He was charged with the new felony, Deceptive
Labeling. The lawyer he was appointed had never heard of the offense.
Fortunately he got out.
James went home and decided that it was best to stay away from the market
for a while. It was also a condition of his release ordered by the judge.
"Stay Away" from the market and five blocks in all directions. One
would have thought he had sold crack there.
His lawyer told him that the case against him was strong and that any kind
of conviction would be a violation of his parole. The Lawyer couldn't talk much
and James had no phone. The lawyer just told him to come to court the next time
and nothing would happen. He said to discuss it with his parole officer since
he was going to know about it anyway.
At the next court date James stared at his lawyer who couldn't recognize
him. The lawyer shouted his name out while standing right in front of his seat.
The lawyer took him out of the courtroom and told him that Deceptive
Labeling carried five years in jail for the quantity of CD's and tapes that he
had. He also told him that the man who brought the police officer was a Mr.
Alex Valenti of the RIAA, [Recording Industry Association of America] an expert
on bootleg tapes. But the charge was not having copied tapes, it was for
having copied labels. The lawyer said that if he waived the hearing and
accepted some paperwork, they would probably get out before lunch. Fortunately
they got out right away. Outside the courtroom the lawyer said that the initial
strategy would be to stay out of further trouble, and delay, delay, and delay
some more. That was fine with James.
The prosecutor assigned to this case didn't want to waste time on it. He
called up James' lawyer and offered a plea to a one-year misdemeanor. James
lawyer put him off as long as he could. The offer expired and James still faced
a five-year felony.
Nothing happened for months. The case was not indicted and no one called.
Then a new prosecutor called. He made the same offer that had supposedly
expired. James' lawyer dutifully contacted James and received a surprising
response.
James wanted to get rid of his case. He had talked it over with his parole
officer who decided that he would not violate him no matter what happened with
this case. James wanted to plead guilty to the misdemeanor. James' lawyer
called the prosecutor and they accepted the deal and set a day before the judge
to plead guilty to a one-year misdemeanor.
The next problem was the plea. In order to plead guilty you must be guilty
and say so to the court. James had repeatedly told his lawyer he didn't do
anything wrong. His lawyer told him he had to admit to some facts so that the
judge could concldue there is a factual basis for his guilty plea. The lawyer
read the police report (and Mr Valenti's affidavit) to James. He then asked
James if the labels on the CD albums were photocopies. James said yes. The
lawyer said tell that to the judge. That will be enough.
On the day of the plea the prosecutor screwed up. Of course it was a new
one, unfamiliar with the case. He described the plea as being to
"Attempted Deceptive Labeling" which carries a penalty of only 180
days in jail. the government also agreed not to oppose a suspended sentence and
probation. Of course neither James nor his lawyer corrected the prosecutor.
The plea went down and he was sentenced immediately to probation with a
mandatory $50 court costs. He told the parole officer who no longer cared.
The lawyer wondered what law they used against students for on-line
downloading. There certainly was no deceptive labeling on the internet.
He hoped for the best for James. He hoped he stayed in balance and didn't
get discouraged. Things could certainly have turned out worse. With a different
judge or prosecutor the result could have been far different. Eight years would
have been a steep price to pay for a theater-made copy of "The Lion
King."
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| Authored by: sleadley on Sunday, August 15 2004 @ 12:36 PM EDT |
Rather telling other people what to do (a trollish quality), here are some the
ideas and rules of thumb I use when reading Groklaw -
My experience and
qualifications for recognizing a troll:
- Partipant in mailing lists
since the dawn of time (the '70s).
- Usenet, BB and forum participant since
1985.
- Usenet administrator 1985-1992.
- Backbone
Cabalist.
Identifying trolls in theory (some distinguishing
characteristics):
- trolling is all about emotion: affecting other
people by inflaming emotions, getting attention, etc.
- trolls take
advantage of social distance (esp. anonymity) to avoid consequences outside the
forum for behavior in the forum
- seeks conflict
- excessive
metadiscussion, e.g.
- discussion about acceptable
discussion
- spelling flames
- verbal bullying,
e.g.
- excessive sarcasm (a la Pirana Brothers)
- ad hominem
argument (although sometimes amusing if not mean spirited)
- lots of
incitement and little or no apology
- excessive off-topic
discussion
- conspiracy theories
- lying
Identifying trolls in practice:
- whould
they say/do that in person?
- whould I tolerate this behavior in
person?
Dealing with trolls in practice:
- read posts by
authors whose opinions I have found valuable
- ignore posts by authors who
have, in my opinion, contributed little useful fact or opinion to the
discussion
- initial presumption of trolling when reading unsigned
posts
- ignore trolls unless there are immediate, important, real-world
consequences to their words
Benefits to me of using these rules of
thumb:
- inner peace
- remaining rational
- practice dealing with
my teenagers
---
Scott Leadley [ Reply to This | # ]
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| Authored by: mscibing on Monday, August 16 2004 @ 10:25 PM EDT |
All the legal documents filed are available as PDFs and as text,
for the visually-impaired, who can have difficulty with PDFs, I've been told,
...
Bravo! Not nearly enough sites accomodate the
visually-impaired. Some PDFs do have markup that allows them to be accessed by
the blind. But the PDFs on this site are undoubtedly images packaged in PDF
format.
And the texts and appropriate html formatting of this site are a
bonus to all visitors, or at least this one. [ Reply to This | # ]
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