Judge Nancy Gertner
In what may be news to RIAA lawyers, a federal judge has admonished the lawyers that they have ethical obligations. According to the transcript (PDF) of a motion hearing in a huge consolidated RIAA case provided to Ray Beckerman of Recording Industry v. the People, Judge Nancy Gertner said:
Counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... to understand that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it ...
There was more:
There is a huge imbalance in these cases. The record companies are represented by large lawfirms with substantial resources. The law is also overwhelmingly on their side. They bring cases against individuals, individuals who don't have lawyers and don't have access to lawyers and who don't understand their legal rights.But, Beckerman says, Judge Gertner needs to take a look at her own role in this inequality.
While it is heartening to see Judge Gertner show some recognition of the unfairness in the way these cases are being handled, it is unclear how she can say that the law is overwhelmingly on the side of the record companies when she recognizes that for the past 5 years she's only been hearing one side of the argument. It is also disheartening that she evidences no recognition of how she has herself contributed to the "imbalance" by consolidating all of the cases, thus (a) providing the record companies with massive economies of scale not available to the defendants, (b) providing virtually untrammeled ex parte access to the Court on all common legal issues, and (c) creating a one-sided atmosphere in the courthouse that causes all defendants to abandon hope.
How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side, when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves?