Friday, February 03, 2006

Marie Lindor to Move for Summary Judgment

Marie Lindor, a home health aide who has never bought, used, or even turned on a computer in her life, but was nevertheless sued by the RIAA in Brooklyn federal court for using an "online distribution system" to "download, distribute, and/or make available for distribution" plaintiff's music files, has requested a pre-motion conference in anticipation of making a summary judgment motion dismissing the complaint and awarding her attorneys fees under the Copyright Act.
Request for pre-motion conference for summary judgment motion

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

35 comments:

MacIke said...

It would be nice if she sued the snot out of the RIAA for something.

M-RES said...

Anyone noticed how much bigger Metallica got after they were involved in stomping on Napster? The next album they released went to Number 1 in 30 countried worldwide in it's first week of release... could this possibly be because of all the additional fans they acquired through their music being shared to a wider audience than it might have been without Napster giving them free distribution and publicity?

Screw the RIAA, they just want to force everyone into using their 'product' in a limited way. I'm a musician and from personal experience it's a real buzz when you find a review of a tune you wrote popping up on a review site in China with no idea of how they even got hold of it... without file sharing I'd never have had an audience anywhere near to this kind of diversity! :)

Andy said...

I'll bet that those "attorney fees" are pretty steep for that 1 paragraph letter. It would serve the RIAA right, but give the money to the lady!

meep.

Russell said...

Andy-- Don't count on her actually being billed for attorney fees if she loses. Lawyers have a professional requirement to do a certain amount of pro-bono work, and work like this is very much for the benefit of the public. I can easily imagine her being forgiven the fees if she loses. On the other hand, if she wins, there's no reason why the RIAA shouldn't get stuck with a bill.

Nerrick said...

I think that the RIAA are really getting out of hand. They have even ogne after sites that hosted music tablature. Now fans cant play along to thier favorite tunes.

Ray Beckerman said...

Dear Andy and Russell,

Don't you think her lawyers (us) deserve to make a living, like everyone else?

Why are lawyers singled out for the view that they should work for free?

If I'm helping this wonderful lady to avoid a big judgment, and helping her to fight back against a bully, why shouldn't I be paid for that?

Thanks for your support and for your viewpoints.

Best regards,

Ray

Erik said...

Ray,

She could settle to avoid the big settlement. I don't know to me it just seems like the person being wrongfully sued is screwed no matter what. She either pays the record companies or her defense lawyers.

slothrop said...

Ray, I think that it's because essentially her need was one created by forces that she could not control. She didn't wake up and say, I want to defend myself in court - she was forced to. Should she pay for that? It doesn't seem very fair.

However, you do need to get paid, and I'm very glad that there are people out there standing up to bunk like this - but I can understand where the people who think it should be pro bono work are coming from. Oh well. Life goes on. Hope you're able to get both your client and yourself a nice wad of cash.

Frederick said...

Ray,
It isn't Lawyers "the guy working for a living" that everyone rants against, its Lawyers "the system" that receives ire.

The days are long gone when a person could resonably defend themselves in court against even the most minor of charges. The phrase "I'm defending myself" usually evokes a foolhardy image.

The justice system has become so incredibly complex that an unacompanied individual isn't even likely to be able to address the judge correctly, let alone mount a credible defense.

So now, the act of merely charging someone with an offense can be enough to financially ruin them - as is the case with these sorts of lawsuits.

People rant against Lawyers "the system" because it is a system in which the individual looses from the beginning, regardless of what they've done or not done.

> said...

Ray,
I think you are a stand up guy to take this case, and I support you getting paid to do it. The RIAA is a dirty organization desperately fighting to hold on to a business model that is no longer viable through the use of litigation.

Thank you for fighting the good fight.
Dan

FiZ said...

Here's the way I see it:

1. She shouldn't 'sue the snot out them' because lawsuits have become a modern form of vigilanteism. As much as I'd like to see the RIAA pummeled into a gooey paste, I like the tar and feathering idea better.

2. Even if a lawyer should take her case for free, she should still seek the amount that would normally be charged because everyone has to make a living.

3. She should not settle under any circumstances. All the out of court settlements against that big and scary RIAA is what keeps them filing more suits. The more skulls on their belt, the scarier they look to the next unsuspecting sap they choose to sue. Fight it in every way.

Andy said...

Ray,

I've got nothing against lawyers. Actually, my brother will graduate from Yale Law in May. I just think that often lawyers come out way ahead of the game, as in class action lawsuits, etc.

I hope the lawyers do get paid for their work. I just think that the lady who's the RIAA's target should get more. Not that she really deserves anything but to be exonerated, but the RIAA is slime if they're going after someone without doing their homework a little better...

-Andy

Paul said...

I'm more interested in finding out exactly how the RIAA came across her name and what evidence they used to decide they should slap a lawsuit on her.
Did they just open a phonebook and throw a dart?
Identity theft?
Novel excuse?

NoTalentWank said...

Two points:
1.) Pay for her defense, should she win and I would hope they get a slam-dunk, is almost always paid by the losing side. You have to file for it, but it is almost automatic.

2.) As frivoulous as the suit is, I would hope that her attorneys after they win this seek damages on behalf of their client. I would also hope the state bar, attorney general, and judicial board all took a gander at such a case.

TCPDump-SSL said...

Ray,

The problem isn't getting the lawyers paid, the problem is that if a settlement comes in, say $50,000, the actual person harmed will get, maybe, $10,000 of the settlement and the lawyers will nickle and dime the other $40,000 for their "fees".

Do I need to pay for an "hour of work" just because your law assistant dialed the phone and asked a 5 second question and got a 3 second answer. The lawyer didn't even do the work, the actual work was 10-20 seconds...I'll even say 5 minutes, but the billing is for an hour.

I am a network security consultant who works with lawyers all the time, so I have seen this happen...over and over and over and....you get the point.

TCP

Goobermunch said...

The problem isn't getting the lawyers paid, the problem is that if a settlement comes in, say $50,000, the actual person harmed will get, maybe, $10,000 of the settlement and the lawyers will nickle and dime the other $40,000 for their "fees".

Do I need to pay for an "hour of work" just because your law assistant dialed the phone and asked a 5 second question and got a 3 second answer. The lawyer didn't even do the work, the actual work was 10-20 seconds...I'll even say 5 minutes, but the billing is for an hour.

I am a network security consultant who works with lawyers all the time, so I have seen this happen...over and over and over and....you get the point.


Wow. You need to get a new law firm.

None of the firms I've ever worked in were like that. Our contingent fee cases are taken for 1/3 of the settlement or judgment amount, but the client pays his or her own expenses (otherwise, we've engaged in champerty, which is illegal). What that means, though, is that if we have to pay expert witnesses $30,000.00 to make a case, then the client will be out that amount at the end of the day. But if they were paying hourly, they'd be paying the same amount anyway, so there's no difference.

Also, as far as telephone conversations by assistants, every firm I've worked at bills in six minute increments. Further, paralegal time is billed out at a lower rate than attorney time. I'd suggest you find a reputable firm to do business with.

--G

zi said...
This comment has been removed by a blog administrator.
Wil said...

Here's what I think happened...the RIAA identified more than one "Marie Lindor". Or she was a victim of identity theft, but I think the first case is more likely. They filed suit against either just her, or all of them. And they will claim to their graves that their system of identifying users is flawless. "We can identify the user who is assigned to an IP address with 100% certainty!", they cry. Yeah, except when the person assigned to the IP address is the guy with the unsecured WiFi across the street from the person leeching off of it, who is doing the real downloading.

Wil said...

It's almost like whoever developed the strategy of identifying the IP addresses of fileshare users intentionally gunked it up so that it wouldn't work. Anyone with an ounce of understanding about how household Internet is delivered in the United States would realize that there's no guarantee you have the right person. The odds are that yes, you will get the right person, because most users aren't savvy enough to cover their tracks. And, unfortunately, these are entirely the wrong people to go after for exactly that reason - if they're not savvy enough to cover their tracks, they're not likely to be savvy enough to be any kind of threat to anyone's property.

Mike777 said...

Ray,

While I believe pro bono has it's place, I also firmly believe in "fair play". You, as her lawyers are doing not only what is right for your client, but also what is Right For The People. Of course you deserve to get paid, and paid well. That being said, the RIAA is doing something which is akin to extortion, and deserves LUDICROUS penalties for it.

The only way to teach an organization a lesson is to impede it's ability to function. Pound it with punitive damages to go into a legal defense fund for others it accuses. That way future defendants will not be denied a defense due to lack of funding, and attorneys will not hesitate to take these cases for fear of inadequate pay.

Give 'em Hell.

Ray Beckerman said...
This comment has been removed by a blog administrator.
Ray Beckerman said...

All they know, or have reason to believe, about Marie Lindor is that she was the person who signed the check paying for internet access through which the internet was accessed by an insecure wireless router in her house.

The router had been used by her adult children, but not at the time of the alleged screenshot, at which time there was no computer at all in the house.

Plaintiffs are completely aware that Marie Lindor herself did not infringe any copyrights. However, they refuse to drop the case against her, hoping to use the pressure on Ms. Lindor as a means of putting the squeeze on her family.

hrob said...

Running an unsecured wireless access point (WAP) is essentially the same as putting up a swimming pool without a fence around it. Whoever does such a thing could easily be liable for whatever bad things get done with it -- and there are lot worse things that could have happened. You could have ended up defending a client who is being detained as a terrorist instead of just getting sued by the RIAA.

You probably do have a cause to turn around and sue the ventor of the WAP for not properly notifying your client about the potential for abuse. You also might be able to get the RIAA off your client's back by offering to help the RIAA sue the WAP vendor for negligence (shipping the WAP with encryption turned off by default). Presumably they have a much better chance of getting money that way.

Ray Beckerman said...

Dear hrob,

I don't know where you're coming from, but suffice it to say your ideas have no basis in, and are directly contrary to all principles of, copyright law.

And your idea of helping the RIAA is unthinkable. They are badly behaved bullies who are abusing the judicial system. If you want to help them, go help them, but I would never advise a client to help the RIAA.

Best regards,

Ray

zi said...

hrob, your ideas assume a lot: that people are smart enough to figure out how to configure WAP/WEP. even many experienced computer users find it difficult to get working/annoying and prefer to leave it off for convenience. as we can clearly see, the users getting sued are novices.

i don't believe in suing router manufacturers for what you call "negligence" on the part of the user. Routers are by their nature very technical things. We don't sue gun manufacturers for murders and crimes committed by guns, now do we? Guns are clearly more dangerous than wireless routers.

MM said...

zi...

no we dont sue gun manufacturers for crimes comitted with their products... but we should. if gun manufacturers found it economically damaging to continue to design guns that are easily used/or modified to be used in crimes, they might just change their designs and lives might be saved... but, as you said, wireless routers are not near as dangerous as guns...

a little off topic but....

peace,

Ray Beckerman said...

It's way off topic for a bunch of nonlawyers to give legal opinions on suits against gun manufacturers, swimming pools without fences, and WAP manufacturers.

Let's get the conversation under control. We're talking about whether you can sue someone for copyright infringement on a computer who's never used a computer.

The answer is no.

Masher1 said...

this is very simple Quit trying to make somthing free "Mp3 encoded audio"
into something for profit and greed.
any one can for free make an Mp3 so there free. no one can make a cd for free can they? No they cant. Give Greed A Break USA you cannot Sue your country out of DEBT. to the movie biz,news biz,show biz,music biz and whatever biz Greed is DEATH.
we are watching very closely at what you are doing as your profits can attest to. Have Fun Sueing for your last bit of life MPAA,RIAA etc......

Christopher D. Heer said...

The fact that you can make MP3s for free is irrelevant.

Distributing unauthorized copywritten works for free is bad. Why? Who will write a book, or compose music, for free?

This is how stupid the RIAA is. At the very root of their nonsense is a valid point: artists should get paid. But instead of addressing that in a sensible manner (like, how do we create a digital distribution at a price where artists still make money but mainstream people embrace), they bully anyone they can find, and it culminates in ridiculous suits like this one.

Best of luck, Ray. One hopes that if enough of these get shot down, the RIAA will start thinking about how to create new legitimate revenue streams in the digital era instead of suing everybody.

--chris

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Tyler said...

Ray,

I'm starting law school next Fall and one of my ambitions is to bring the RIAA to its knees. They can't keep abusing their legal right to sue. It's lawyers like you that make me proud to be prelaw.

Keep fighting the good fight.

-Tyler

Susi said...

Good luck, Ray!

It's stuff like this that makes me HAPPY there are attorneys in the world. Most average Americans don't have a hope against bullies like the RIAA on their own.

Get 'em!
Susi

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Anonymous said...

its obvious that this lady wasnt responsible for what they are charging here with ... there are so many people that are actually stealing music and they cant get everyone ... i feel bad that she is force to defend herself and pay all these legal fees ... im sure this home health aide will be in debt to pay these legal fees