Friday, September 30, 2005

"Jane Doe" Moves to Quash Subpoena in RIAA filesharing case Loud v. Does

On September 29th, in an RIAA p2p file sharing case brought against 74 "John Does" in federal court in Manhattan, Loud v. Does, where a subpoena has been served on the internet service provider (ISP) Cablevision, one of the "Jane Does" made a motion to quash the subpoena.

Her motion is based on the principle that a subpoena will not issue unless the plaintiff has made a showing of a prima facie case, and that the RIAA has no case since its complaint does not allege any specific acts, dates, or times of infringement, as required by law.

Her lawyers argued as follows:

Here, the Complaint alleges in conclusory fashion and upon information and belief that the Doe Defendants used “an online media distribution system” to download and distribute certain alleged copyrighted recordings to the public, and/or to make such recordings “available for distribution to others.” Complaint, ¶ 23 (Rogers Affidavit, Exhibit “B”). The Complaint makes no attempt to describe the specific acts of infringement or the dates and times on which they allegedly occurred. Indeed, the Complaint does not allege any actual instances of downloading or distribution. Nor does the Complaint make any attempt to set forth specific evidentiary facts upon which plaintiffs’ purported “information and belief” are based. Trans World Corp. v. Odyssey Partners, 561 F.Supp. 1315, 1323 (S.D.N.Y. 1983); Fountain v. Talley, 104 F.Supp.2d 1345, 1355 (M.D.Ala. 2000) (granting motion to dismiss because critical element of claim was pleaded upon information and belief without alleging facts showing the basis for such belief). The Complaint is therefore subject to dismissal. Marvullo, supra, 105 F.Supp.2d at 230; Brought to Life Music, Inc., supra, 2003 WL 296561 at *1; Plunket v. Doyle, 2001 WL 175252 at *4-6.
Although the Complaint refers to an Exhibit A purportedly listing copyrighted recordings that were allegedly infringed (Complaint, ¶¶ 21, 23), no such exhibit is attached to the Complaint in this case. In several similar cases brought by the recording industry against individuals, the complaints contained a list of songs that were purportedly made available for downloading by others through an internet account. Even if such a list had been attached in this case, the Complaint still would not state a claim for copyright infringement. It is well established that there is no liability for infringing upon the right of distribution unless copies of copyrighted works were actually disseminated to members of the public.

Complaint.

Jane Doe's Notice of Motion to Quash Subpoena
Affidavit of Morlan Ty Rogers in Support of Motion to Quash
Exhibit A
Exhibit B
Jane Doe's Memorandum of Law in Support of Motion to Quash

The lawyers for Jane Doe are Ray Beckerman, Morlan Ty Rogers, and Daniel A. Singer of Beldock Levine & Hoffman LLP

2 comments:

Anonymous said...

Some of the files are missing.

Ray Beckerman said...

Thanks very much for bringing to our attention the incorrect links. We've corrected the situation.