Re: [dvd-discuss] Will there be an appeal?

["James S. Tyre" <jstyre(at)jstyre.com>]

[A twofer, responding to both Mike and John.]

At 11:47 AM 12/3/2001 -0800, microlenz@earthlink.net wrote:
>I don't know about a corporation but individuals can be declared
>vexatious litigants in Cal. But that is more trouble than it's worth
>because the courts don't like to block access for individuals or
>administer the suits when they get filed.

To be a vexatious litigant, one must have instituted a number of lawsuits, 
vexatiously.  RIAA et al did not institute this one, we did.  We thought 
that the April letter and other items discussed in our papers were enough 
to make this a "live" case or controversy under Art. III of the 
Constitution, the Court disagreed.


>I don't know if anyone has pioneered a Class Action-anti SLAPP
>suit yet.

Not that I know of.  In any event, there are serious Constitutional 
questions whether an anti-SLAPP law such as what we have in CA, which is 
meaningfully different from the anti-SLAPP laws in most other states which 
have them, can be applied to a non-diversity federal court case.


>Date sent:              Mon, 03 Dec 2001 10:35:54 -0700
>From:                   "John Zulauf" <johnzu@ia.nsc.com>
>To:                     dvd-discuss@eon.law.harvard.edu
>Subject:                Re: [dvd-discuss] Will there be an appeal?
>Send reply to:          dvd-discuss@eon.law.harvard.edu
>
> > Jim,
> >
> > pratical question.  Given the decision of the lower court, what is to
> > stop the RIAA et. al. from praticing "lawsuitus interuptus" where they
> > always pull out at the last minute and leave the defendendant with no
> > cause, but having missed their publication windows, and having
> > incurred substantial legal costs.


The trial court's decision isn't precedent, of course.  We don't know yet 
whether it will be published, but it isn't binding on others even if it is.

That said, you have nailed the impact of the court's decision, should other 
courts adopt it or should other researchers be chilled by it.  The court's 
attitude was the old "where's the beef?" line, since it believed that 
whatever threats had been made were withdrawn.  Ergo, end of case.  One can 
only speculate what might have been the case if the researchers had not 
presented at USENIX, but our papers made clear that the USENIX presentation 
was not the only matter at issue.

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