While the link included in the source article provides far too much information regarding the scope of RIAA tactics in how it goes about suing people, there are a few salient points to highlight, which will show how egregiously the RIAA violates normal legal procedures, as defined by the U.S. legal code.
To coin a movie producer’s line we have to “take it from the top,” or where the RIAA begins. It starts with lumping a huge defendant pool together (not allowable under the Federal Rules of Civil Procedure), instead of initially naming one defendant per action as required (meaning the RIAA begins without knowing the identity of the prospective ‘violator’). Then, the defendants only receive some vague communication from their ISP, but NOT the required copy of the application for the ex parte order against them, so they have no chance to be notified ahead of time to present some kind of defense, nor to then appear in court personally. Why this is a woeful wrongdoing is because just in personally researching local district court cases, the first document in the file folder is the application of the order for said legal proceedings, which is then followed by a document showing that some person in some legal capacity has served the defendant with said paperwork, so the defendant knows there is a lawsuit pending. This is usually followed by the defendant’s rebuttal of the complaints, sometimes in detail and point by point. Finally, even the first paragraphs of the primary lawsuit will state something to the effect that both parties and their legal council were present and answered ready, at which point the proceedings begin.
Why should potential defendants be named and properly notified at every stage? First of all, the U.S. system of jurisprudence is considered an ‘adversarial system,” one where both plaintiff and defendant (with their legal representatives) are present, stating their case, and having the opportunity to question witnesses, etc. Both sides must (except in very rare circumstances) have access to the same evidence and ‘discovery’ for it to be fair to allow both sides to properly prepare. In this case, the RIAA gets the advantage of keeping potential defendants in the dark since these people have no idea what the complaint(s) are, nor that there are any legal proceedings taking place. This injustice is further compounded by the ex parte motion. The reason why this kind of motion should be “rarely granted” is because of the above reasons—both parties must be present where ‘normal circumstances’ are involved; the only time an ex parte motion might be granted is where notifying the defendant (in an ugly divorce, for example) might lead to violence or harm to the children involved. In other words, only in the few cases where the legal preponderance of evidence is presented to justify such an action--where a definite risk of this nature is quantifiable—should an ex parte motion be granted. By the very nature of these proceedings, there is no reason to keep the defendants uninformed, nor is there any reason to have them excluded from being in court, nor excluded from being aware of the proceedings against them.
However, by both not insisting to proper RIAA adherence to the Federal Rules of Civil Procedure and by granting ex parte motions for discovery where the RIAA has shown no risk of harm or injury against someone else, one must question how well ‘qualified’ some of the judges hearing these RIAA cases have been, where such shenanigans have been permitted, thereby circumventing the legal code and denying defendants their same opportunity to know of the complaint, to answer it, and to have an equal chance to be a part of the very proceedings the law states they should have. Curiously, if an equivalent example occurred, such as arresting a defendant without proper mirandization, then holding the person without formal charges and those kind of specified legal notifications, many judges have nullified such arrests strictly on the basis on no or imcomplete mirandization, and consequently released those potential defendants because the stipulated legal process was not followed.
Since Ray Beckerman does his best to explain and make the normal ‘legalese’ more accessible to laymen, readers are strongly encouraged to read Beckerman’s delineation of RIAA motions and tactics. It certainly begs the question that ‘if the RIAA were ‘in the right’ and otherwise ‘on the right side of the law,’ why would it stoop to being so underhanded?
