Jane Doe Moves for "En Banc" Reconsideration in Loud v. Does

Jane Doe has moved for en banc reconsideration by the United States Court of Appeals for the Second Circuit of her application for a stay of the "John Doe" subpoena served upon her ISP.

Motion for En Banc Reconsideration

The term "en banc" means that the motion would be considered by all of the judges on the Second Circuit court, and not just by a panel of 3 judges.

She pointed out to the court that (a) the damage which would be caused by releasing the information would be irreversible: once her identity is divulged, it's divulged; (b) courts in other circuits and even state courts have held that such orders are appealable, since the inability to appeal from the order means that no meaningful appellate review could ever take place.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaaradar

Motion to Dismiss Denied in Elektra v. Santangelo

The motion to dismiss in Elektra v. Santangelo has been denied. The ruling came in a 6-page written decision by Judge Colleen McMahon.

The ruling means that Ms. Santangelo will have to file an answer, and go through pretrial discovery, and possibly a trial.

Copy of decision.
(Alternate link)

Comment:

We are very disappointed in the Court's ruling.

The meaning of it, if other judges follow it, is that no one will be able to get
the RIAA's baseless lawsuits dismissed without going all through all the expense
and anguish of pretrial discovery, and either a summary judgment
motion or a trial.

It also means that no one will be able to get a Copyright Act attorneys fee award until after months or years of litigation.

As a result, it would be economically impossible to defend these lawsuits.

Under the federal rules, the order is not appealable, so it is the law of the case until a final judgment is obtained by the RIAA or by the defendant.

From this point on I will have to advise any litigants who are sued in Judge McMahon's Part, that they have no way of defending themselves without spending thousands, probably tens of thousands, of dollars.

-Ray Beckerman

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaaradar

Kazaa Stay Extended to February 2006

As reported in p2pnet.net, the Kazaa judgment in Australia has been stayed until February 6, 2006, by which time it is anticipated that Kazaa's appeal will have been heard by the appeals court.

http://p2pnet.net/story/7123

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaaradar

Appeal Dismissed in Loud v. Does

The appeal of "Jane Doe" from Judge Sweet's handwritten order denying her motion to quash has been dismissed by the United States Court of Appeals for the Second Circuit.

The Court ruled that the order appealed from comes within none of the exceptions to the general rule that orders enforcing subpoenas are not final and therefore not appealable.

Order dismissing appeal
(Alternate link)

Comment:

As one of the attorneys for Jane Doe, I disagree. This was a unique kind of order, in that it was a subpoena to reveal someone's identity. If it is not appealable by the person whose identity is to be revealed, then it can never be reviewed on appeal.

I think the appeals court made a mistake, lumping this together with appeals from other types of non-final orders.

We are looking into the feasibility of moving for a rehearing.

-R.B.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaaradar

Directory of Lawyers Defending RIAA Suits

Please see updated version at http://info.riaalawsuits.us/directory.htm

Index of Litigation Documents

Please see updated version at http://info.riaalawsuits.us/documents.htm

Under Decisions by Judge Newcomer, RIAA is Improperly Joining "John Does"

According to the 2004 decisions and orders of Judge Newcomer, in the Eastern District of Pennsylvania, it is improper for the RIAA to continue to bring single cases against a large number of John Does.

Judge Newcomer's decisions, prohibiting such joinder, are linked below.

First Order Denying Joinder (See Second Order Shown At This First Link)

Second Order Denying Joinder

The RIAA has a practice of starting off its torrents of litigation
with massive, secret suits against John Doe defendants who do not
know they've even been sued. Invariably these cases name dozens,
scores, or even hundreds of different "John Does" in a single lawsuit.

I recently came across the above decisions from Judge Newcomer in the
Eastern District Court of Pennsylvania, who explained in very clear
terms why the law does not permit the joinder of the multiple John Does.

Judge Newcomer pointed out that none of the normal indicia for
joinder are present:
1. There is nothing in the complaint indicating that the claims result from
the same incident or incidents;
2. The claims against the defendants would all require different
trials, since there would be different evidence, different theories,
different defenses, etc.
3. There will almost separately be different issues of fact;
4. There is no indication that plaintiff's alleged injuries arose
from the same transactions or occurrences.

In BMG v. Does, the case he was deciding, which was against
204 defendants, the judge required the RIAA to file 203 new
lawsuits.

Since these decisions are from 2004, and since judicial precedents
are usually followed by lawyers, it is a bit difficult for me to understand
why the RIAA has been proceeding as though Judge Newcomer's
decisions do not exist.

-R.B.

Upcoming Court Dates: Open to the Public

All proceedings open to the public. All interested parties are invited to attend.

Wednesday, December 7, 2005. 4:30 P.M. USDC, SDNY. New York, NY. Judge Sweet. Loud v. Does. Conference.

Wednesday, December 14, 2005. 3:00 P.M. USDC, SDNY. New York, NY. Judge Karas. Elektra v. Barker. Pre-motion conference for motion to dismiss complaint.

Thursday, January 5, 2006. 2:00 P.M. USDC, SDNY. New York, NY. Judge Holwell. Interscope v. Does. 500 Pearl St., Courtroom 17B. Conference.

Wednesday, January 25, 2006. 4:00 P.M. USDC, EDNY. Brooklyn, NY. Magistrate Judge Levy. Maverick Recording v. Goldshteyn. Courtroom 619, 225 Cadman Plaza East, Brooklyn, NY. Conference.

Note: If you are aware of upcoming court dates in RIAA v. Consumer cases, please email information to musiclitigation@earthlink.net.
Thank you.
-R.B.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaaradar

Motion to Dismiss to be Made in Maverick v. Goldshteyn in Brooklyn Federal Court

A new motion to dismiss is being made, in yet another peer to peer RIAA file sharing case, Maverick Recording v. Goldshteyn.

November 15, 2005, Letter to Judge Trager
(Alternate link)(Alternate link #2)

Netherlands Court Rejects Media Sentry Investigation as Unlawful; Orders ISP's Not to Turn Over Confidential Subscriber Information

We have just obtained a copy of the July 12, 2005, decision of the District Court of Utrecht, in the Netherlands, in Foundation v. UPC Nederland in which it was held that Media Sentry's investigation of peer to peer file sharing over software such as that supplied by Kazaa and Grokster was flawed and not "lawful", and that the internet service providers were not permitted to divulge subscriber information to the RIAA's Netherlands counterparts.

Court's decision
(Alternate link) (Alternate link #2) (Alternate link #3)(Alternate link #4)

Expert witness declaration
(Alternate link) (Alternate link #2) (Alternate link #3)(Alternate link #4)

Documents furnished courtesy of
Christiaan Alberdingk Thijm
SOLV Advocaten
P.O. Box 75538
1070 AM Amsterdam

Schippersgracht 1-3
1011 TR Amsterdam
The Netherlands
T +31 20 5300160
F +31 20 5300170
M +31 6 25017 235
E thijm@solv.nl
W www.solv.nl

These are the attorneys who successfully represented the defendants.

Alex Cameron Reports on P2P Conference and Points to Difference Between Canadian and US Courts Handling RIAA Cases

p2pnet presents an excellent report by Alex Cameron, a member of the faculty of the University of Ottowa Law School, who compares the approach taken by the Canadian courts to that taken so far by the U.S. courts, in the RIAA cases:

I learned Canadians have some good reasons to be proud about the approach that our courts and policy makers have taken to the issue of p2p litigation and copyright reform more generally (at least when compared to the approaches taken in the US).

It was astonishing to me to hear anecdotes about how US courts have so unquestioningly accepted “evidence” from RIAA and its investigator MediaSentry, effectively opening the litigation floodgates on potentially innocent individuals alleged to have engaged in file-sharing. In Canada, our Federal Court and Federal Court of Appeal asked what I consider common sense questions about how the Canadian Recording Industry Association (CRIA) and MediaSentry went about their investigations.

After asking these questions, our courts refused to order ISPs to identify their targeted customers because the courts were not satisfied with the quality of evidence put forward by MediaSentry.

Given the risk that innocent people could be exposed to lawsuits, our courts refused to order ISPs to hand over individuals’ names to CRIA. US courts do not appear to be asking the same questions (in part I suppose because of differences in the law). Whether this relatively unquestioning approach will carry forward into the determination of the substantive copyright issues remains to be seen, particularly given that those determinations could have such devastating consequences for individuals as described above.

Complete text of report

Media Sentry Tactics Explained: Full Copy of Deposition Transcript

Deposition of Media Sentry representative in BMG v. Doe explaining Media Sentry 'investigative' technique

(Alternate link)

Canada's Federal Court of Appeal found Media Sentry's 'investigation' to be too unreliable to warrant turning over private information of the "John Doe" defendants:

Decision of Federal Court of Appeal
(Alternate link)

My report on the p2p litigation summit

I was privileged to attend the "First Annual p2p Litigation Summit", held in Chicago, Illinois, on Thursday, November 3rd, at Northwestern University School of Law. The event was co-sponsored by the Electronic Frontier Foundation ("EFF"), and Privacy Solutions PC. The event was organized by Corynne McSherry of EFF and Katherine Mudd of Privacy Solutions. The hosts were Cindy Cohn, Legal Director of the EFF, Allison Navone of EFF, and Charles Mudd and Katherine Mudd of Privacy Solutions.

RIAA representatives were invited to appear as speakers, but declined the invitation.

The audience seemed to be made up of people primarily from the digital copyright legal community and the online business community.

It was a great learning experience for me, and it was great to meet people who have been fighting the RIAA longer than I have. I learned for the first time that BMG v. Gonzales, which is the only contested case the RIAA has won, was appealed, and that the appeal was argued a few days ago in the 7th Circuit.

The ISP community was represented by Randall Cadenhead, corporate counsel of Cox Communications, based in Atlanta, Georgia. Mr. Cadenhead spoke informatively about the human impact the RIAA lawsuits have had on the people sued, and about varyious technical issues, including the unreliability of dynamic IP addresses. He was joined by Charles Mudd, who spoke about the RIAA cases he has been handling in Chicago.

One of the RIAA defendants himself spoke, telling his story of what it was like to be caught up in the web of litigation when he'd done nothing illegal.

Alex Cameron, an instructor at the University of Ottawa law school, spoke on the Canadian Case, BMG v. Doe, in which Canada's Federal Court of Appeal held the RIAA's Canadian counterpart to much higher standards, before bringing a lawsuit and before obtaining "John Doe" information, than the United States judges have done.

Prof. Henry Perritt, Jr., and student Derek Slater, gave an informative presentation on possible future alternative business models for the distribution of online music.

I was on a panel discussing litigation activities. The first speaker was Paul Levy of Public Citizen, a public interest law firm. Aden Fine of the American Civil Liberties Union followed. Paul and Aden spoke about the background of cases which dealt with procedural due process issues, such as the battle to knock out Digital Millenium Copyright Act subpoenas and instead require John Doe litigations, the battle to require proper notices on the part of ISP's, and the battle to ensure that the named defendants are sued in the districts in which they reside. I gave a 'litigation roundup' on the current wave of RIAA v. End User litigations in which the end users are now fighting back.

Another panel composed of John Hermann of Berkley, Michigan, and Charles Mudd of Chicago, dealt with the impossibility of negotiating settlements, since the Shook Hardy & Bacon law firm has simply refused to negotiate, has insisted on 'take it or leave it' dollar amounts, and has insisted upon an extremely onerous one-sided form of agreement which can hardly be termed a 'settlement' at all. John Hermann is the lawyer who in Detroit federal court has been battling with the RIAA in Priority Records v. Candy Chan, Elektra v. Harless, and Motown v. Nelson, and whose motion for summary judgment in the Candy Chan case prompted the RIAA to sue 14-year-old Brittany Chan. Charles Mudd has been representing a number of RIAA defendants in a settlement context.

There was the type of sharp, incisive questioning, and give and take, that takes place when you bring together in one room a bunch of people who know what they're talking about, and have had a lot of experience with the same subject.

It was the sense of the room that we would all hope that there would be no need for a second annual p2p litigation summit, but that with the irresponsible attitudes of the RIAA and of its law firm, we expected there probably would be.

While I personally expect the RIAA to lose a bunch of cases shortly -- both the early stage cases which my firm is handling in the New York City area -- and the late stage case, which is going to a jury trial in 3 weeks in Detroit, Michigan, it seems to be that the RIAA will appeal every defeat, thus dragging these cases on into the future.

When the judges start hitting the RIAA with attorneys fees, and their attorneys with 'sanctions', then this wave of frivolous litigation will stop, but probably not until then.

That's where I and my associates come in. We've got to get us some victories, and get some fee awards, which will bring the fun into it.

But for now it was a treat to be among people of such high moral calibre and such outstanding legal talent; it was one of those days where I'm proud to be a lawyer, unlike the days where I spend much of my time communicating with Shook Hardy & Bacon.