Monday, January 02, 2006

Programmer Challenges RIAA "Investigation" in Court Papers Filed Dec. 28th to Vacate "Ex Parte" Order

At the core of the whole RIAA litigation process are:
(1) the mass lawsuit against a large number of "John Does";
(2) the "ex parte" order of discovery; and
(3) the subpoenas demanding the names and addresses of the "John Does".
(For more detailed description see "How the RIAA Litigation Machine Rolls Along"(Digital Music News))

In Atlantic v. John Does 1-25, a case pending in federal court in Manhattan, a midwesterner sued as John Doe Number 8 has made motions which seek to knock out all three (3) prongs of the RIAA litigation machine.

On December 1st he made a motion to sever the mass lawsuit, and dismiss as to John Does 2-25, on the ground that it is impermissible to join 25 unrelated defendants under the federal rules, where there is no connection between the defendants other than the fact that they are accused of engaging in similar, but unconnected, conduct.

Also on December 1st, he moved to quash the subpoena issued to his ISP, on the ground that the RIAA has not sufficiently alleged any copyright infringement.

Today, December 28th, he has moved to knock out the third underpinning of the RIAA John Doe weaponry -- the ex parte order.

Notice of Motion to Vacate Ex Parte Order
(Alternate link)(Alternate link #2)(Alternate link #3)
Affidavit of Zi Mei in Support of Motion
(Alternate link)(Alternate link #2)
Affidavit of Ty Rogers In Support of Motion
(Alternate link)(Alternate link #2)
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit 1 to Exhibit D (part 1)
Exhibit 1 to Exhibit D (part 2)
Exhibit 1 to Exhibit D (part 3)
Exhibit 1 to Exhibit D (part 4)
Exhibit 1 to Exhibit D (part 5)
Exhibit 1 to Exhibit D (part 6)
Exhibit E
Exhibit F
Exhibit G
Memorandum of Law In Support of Motion
(Alternate link)(Alternate link #2)
Appendix 1 to Memorandum of Law
Appendix 2 to Memorandum of Law
Appendix 3 to Memorandum of Law

In addition to pointing out that the RIAA has failed to submit any proper evidentiary showing that it has a case -- which is necessary in order to obtain an order permitting discovery of identities -- John Doe #8 has also submitted the affidavit of programmer Zi Mei, who attacks the validity of the Media Sentry investigation upon which the lawsuit was based.

The case is pending before Judge Laura Taylor Swain, in the United States District Court for the Southern District of New York, in Manhattan.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa mp3 independent


Keith said...

I think its great you guys are helping victims fight these RIAA bullies. In my opinion they missed their calling; they would have fit in perfectly back in the early 40s working with the NAZI party.

Keep up the great work!

ncurtain said...

I think its great you guys are helping victims fight these RIAA bullies. In my opinion they missed their calling; they would have fit in perfectly back in the early 40s working with the NAZI party.

What's wrong with the present nazi party? RIAA works well with that one.

John said...

The link to

is a zero length file

David Thomas said...

It sounds like a reasonable case.

Good luck!!!

eclectica said...

Those 4 pdf files you linked to are dead with 0k filesizes, as you can see here:
Index of /atlantic_does

Al Feldzamen said...

Although the PDF files directly referenced above are indeed blank, their contents can readily be gotten by using the link in the penultimate paragraph of the story above, where the links are functional.

Ray Beckerman said...

Thanks for the input. I've repaired the links now!

Conceptgenesis said...

When the RIAA copies the files off of a computer in an effort to show infringement, aren't they breaking the law when they copy the mp3's generated from music that they did not produce (made by other record companies)? That is to say, If they copy 100 mp3's off a computer and analyze them only to find that 50 of them are copied from music that they produced, doesn't that mean that they have illegally copied 50 songs?

Ray Beckerman said...

Dear conceptgenesis:

Maybe so. Interesting thought.

Best regards,


Capitalism Vs Internet said...

two things:
1: assuming they do in fact copy the data from one machine to another rather than install a scanner locally or move the hdd into another box to be scanned &

2: assuming the other label isn't party to the MPAA or RIAA (& depending on the agreements each label has with each other when acting in this persona)

then yes what your saying is totally plausible in my opinion.

The reason why it's not just Sony using rootkits is because it's not just Sony who belong to the conglomerates that are MPAA and RIAA.

Marsvenge said...

Three points with which to increase your arsenal against this injustice.

1. There was an interesting article written by Marci Hamilton entitled "The Story Behind the Judgement" which might help in debunking the various allegations made by the RIAA in their malicious and abusive lawsuits.

The link to the article is here:

In summary, the recording industry overreached in their greed and as an "industry standard" have been filing copyright registrations with themselves as the authors under the work-made-for-hire statute even though sound recordings are not covered under this particular statute (specifically not covered as you will see in the article). In light of this, their allegations of owning a validly registered copyright would be a blatant lie. It seems as though the artists themselves (represented by the RAC) would argue against the RIAA on this point. Is there still an act of infringement if the copyright is not validly registered?

2. The US system is based on precedent and Ray has already found precedent (from 2004 in PA)showing the initial "John Doe" lawsuits are improperly joined. That being the case why are ex parte orders of discovery still being issued based on improperly joined lawsuits filed after that precedent has already been set? Is that precedent only for the state of PA? Are there no penalties or sanctions for the lawyers who continue to file the initial "John Doe" lawsuits knowing that they are improperly joined? It is inconceivable that they are unaware, as by their own admission they have one law firm coordinating the national effort, overseeing what individual law firms are doing in different states.

3. Their pleadings alleging infringement are based on information and belief and if the information is debunked (at best there is no due diligence in obtaining the information, worse case being complete fabrication) could they still file a lawsuit solely based on their belief? Why isn't the RIAA being required to provide the information upon which they base their belief at the time of the filing? Is that an issue for the discovery phase?

IANAL but these issues have been bugging me since I first started reading about these lawsuits. I read the one judge's depiction of these lawsuits falling under the category of malicous prosecution and abuse of process. Is pure fact-finding an intended legitimate use of lawsuits?

Oli said...

Marsvenge has some interesting questions and I wondered the same things as well - maybe Ray you could explain those to us?

I also have a question as well I am greatly bugged by the definition of "Illegal" - my understanding was an act was illegal if it broke a criminal law - not a civil law - therefore unless there is some actual statute saying downloading music is a crime (and if there is why aren't the RIAA getting criminal charges brought against downloaders as that would be a better message than suing which makes them look greedy! which they are!) I am discounting common law “crimes” as I doubt the majority of downloaders have the mental (mens rea) element of committing theft!

If that is the case them by saying people are “illegally” downloading music and are “stealing” then
the RIAA are lying from the very beginning are they not?

I also found it laughable when that reporter on one of the Santangelo interviews confronted with the president of the RIAA mentioning it was like shoplifting a CD didn’t ask him when was
anyone sued by the RIAA for hundreds of thousands of dollars for shoplifting a CD? The answer
Is they are not! They are arrested and in some cases charged with a crime – IF it even gets that far! Which it may not – if they had someone with a brain doing those interviews Mr RIAA would
Have looked like a royal idiot by the end of the interview!

Ray Beckerman said...

Dear Oli,

Mr. RIAA did wind up looking pretty bad, I thought.

"Illegal" isn't a real legal term. These cases are civil, not criminal. The issue is whether a copyright was infringed or not.

Best regards,


Ray Beckerman said...

Dear Marsvenge:

No, it is not a proper use of a lawsuit to bring it just to find out who you should really be suing.

There would be no infringement case if plaintiff can't sustain its burden of proving it has a copyight.

There is simply no legal basis in statutes, rules, or cases, for joining the unrelated John Does.

Since their allegations are so vague, we feel that they should be required to state what the basis of their information and belief is.

Best regards,