Re: your mail
On Tue, Jul 20, 2004 at 11:33:47AM +0200, Sven Luther wrote:
> On Tue, Jul 20, 2004 at 07:16:22PM +1000, Matthew Palmer wrote:
> > On Tue, Jul 20, 2004 at 10:16:12AM +0200, Sven Luther wrote:
> > > On Mon, Jul 19, 2004 at 10:31:02PM -0800, D. Starner wrote:
> > > > > Also, in any sane legal
> > > > > system, it should only affect those users who willingly violate the licence,
> > > > > even after a cease-and-desist letter, and i would say they deserve what they
> > > > > get.
> > > >
> > > > In any sane legal system, the judge is going to find out what's going
> > > > on from both sides before he even considers dismissing the case. That
> > >
> > > Ok, but we are in the case where the defendor is innocent, right ?
> >
> > So? The cost of defending against the suit is still considerable. And
> > there is no guarantee of being awarded costs even for a frivolous lawsuit,
> > let alone collecting.
>
> Well, the cost would be mostly the same, but i answered that elsewhere to you.
Same costs to me if brought in Sydney, Australia, as if brought in
Versailles, France? No way in hell.
> > > > means that the user has to hire a French lawyer to write a response to
> > > > the statement of cause. Unless the judges are omniscient, that's what
> > > > has to happen.
> > >
> > > What exactly is stopping him from hiring a local lawyer to write the statement
> > > and sent it per letter to the judge, and how will it differ from the case
> > > where the court of venue is local to him ? The choice of law is the french law
> > > in both case.
> >
> > It's still very costly. Here's an example from the US:
> > http://mainsleazespam.com/law/ema.html
>
> Yeah, but cost in the US and cost elsewhere may not be comparable. And we have
> free legal counsel here. And an instruction judge, which mean that you have to
> somehow convince the judge of the legalities of your claim before the lawsuit
> starts. This would not be the case in the US, i think.
>From memory, there is an initial validity hearing, and I know you can make a
motion for dismissal, but the defendant needs to put in an argument. Having
your legal aid lawyer turn up and say "not us!" isn't going to cut it, even
in France I imagine. Your lawyer is going to have to do research, and do it
well enough.
And as I said before, I imagine that France's free legal counsel doesn't
apply to supplying copyright law specialists to foreign nationals on the
other side of the world. And there's no way I'm relying on some legal aid
hack to dig me out of a copyright lawsuit.
> > Whilst this is America, home of the bullshit lawsuit, I contend that
> > something substantively similar could happen basically anywhere. It
> > happened in Australia, too, again around the issue of spam, and I think
> > there's been a similar case or two in Europe somewhere.
>
> Well, the law of australia and US are mostly similar, are they not ?
Yeah, but the world's becoming a more homogeneous place all the time.
> > > Well, but a tentative to repeteadly harass using lawsuits will probably not be
> > > missed by a judge.
> >
> > s/tentative/tendency/? Possibly not, but it's not hard to identify this
> > sort of thing if the suits don't come before the same judge.
>
> No, a try would be more like it ? Also, since the defendor has at least the
> chance of an initial reply, he could very well mention other suits, or tries
The defendant needs to research those attempted cases, assuming they weren't
sealed or otherwise hidden from general view, and the research will cost
money. Furthermore, I don't see any reason why a judge would necessarily be
willing to hear about other (unrelated) cases when deciding this one.
> of suits, and i thougt there were something about a suit once tried or
> dismissed, you cannot simply go to another judge and try again.
Dismissal with prejudice precludes the same case being brought against the
same defendant, and losing a case at trial does the same, but causing the
defendant to spend lots of money and then giving the suit away is possible.
Also, I'd consider it more likely that a harassing copyright holder would
probably go after different parties each time, which is the basis under
which I've been attacking this issue.
- Matt
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