Recording Industry vs The People: Mystery : RIAA Discontinues Against John Doe #8 in Atlantic v. Does1-25

Thursday, March 02, 2006

Mystery : RIAA Discontinues Against John Doe #8 in Atlantic v. Does1-25

A great mystery:

RIAA has discontinued its case against John Doe #8 in Atlantic v. Does 1-25.

Notice of Voluntary Dismissal (Published at Internet Law & Regulation)

That is the case in Manhattan federal court before Judge Swain, in which defendant John Doe #8 had moved to vacate the court's ex parte discovery order, affidavits of programmer Zi Mei were presented challenging the Jonathan Whitehead declarations, and Mr. Whitehead later corrected an "error" in his submissions.

We don't know why this discontinuance has occurred.

Usually RIAA does that only when the name and address information has been turned over. But for that to have occurred here, it would probably mean that the ISP and the RIAA would have been violating a court-ordered stay.

Possibly they discontinued because they felt they would lose the motion and did not want to set a bad precedent.

We will keep you posted if we get any additional information.

-R.B.

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

8 comments:

CodeWarrior said...: You're probably right Ray.

At least, it shows a chink in their armor to me.
~Code; March 2, 2006 at 7:00:00 PM EST
qwasinaut01 said...: Wait...

The notice says "dismiss ... against the remaining defendants" (emphasis mine). Does that indicate that Does 4 and 22 were already dismissed and the whole action has now been discontinued?; March 3, 2006 at 1:48:00 AM EST
raybeckerman said...: 1. According to that document, the whole action is now dismissed.

2. jaded, I don't understand your questions but I can tell you: (a) under the rules a plaintiff can voluntarily dismiss a case before a defendant has served an answer; (b) I personally believe that there are many people who have grounds for suing the RIAA, and indeed Tanya Andersen has done that in Oregon; (c) I have no knowledge of how many cases there are or how many probably will go to trial.; March 3, 2006 at 4:48:00 PM EST
raybeckerman said...: At this point it is all speculation.

I have asked the RIAA's attorneys what is going on, and they have not responded.

There has been an eery silence.

All I know is that there is some confusion in their ranks.

One very serious possibility is that John Doe's name and address was turned over in violation of the stay. If this occurred it would be a very serious matter, a contempt of court, which could be a very grave matter for an attorney or for a law firm, and it may be that the highest echelons of the law firms -- even those partners who have nothing to do with the RIAA litigation -- are involved in trying to figure out how best to present this matter to the Judge without getting themselves in worse trouble.

Right now I can only wait, but I think the Judge will want to know what's going on as much as I do.; March 4, 2006 at 2:48:00 PM EST
raybeckerman said...: Dear Zi

In response to your speculation about what I meant, I never can presume to predict what will happen in any given case. It is up to the judge and the jury, not me.

All I know is that with respect to the instant motion, the Judge appeared to be very familiar with the applicable law, and to have read and studied the caselaw carefully, all of which gives me great optimism, but I would never try to say what will "likely" happen.; March 4, 2006 at 5:21:00 PM EST
recordjackethistorian said...: A chink int he armour indeed! I hope for the best here.

For a long time I have known that there is an underlying problem in the upper echalons of the businesss world. It is that they are completely disconnected with the advances in technology.

They are not technophobes by any means. Their power and positions have enabled them to simply bypass it. They have "left the details" to others for so long they no longer know what "the details are".

Steve Jobs had to explain this in detail to them, to get them to understand that the word "burn" in conjunction wiht making a CD-ROM meant to write data to the blank media and not to steal or hurt someone else.

The lack of basic technical understanding on the part of someone they call a Vice President Johnathan Whitehead was truly alarming. He knew less than a highschool computer technologies student would be expected to know.

How on earth can major corporation think they can run a whole industry when they cannot even keep up in the changes in technology which directly affect it?

Cheers,
David

http://recordjackethistorian.blogspot.com; March 6, 2006 at 9:41:00 AM EST
recordjackethistorian said...: Is anyone willilng to take a guess at how long Johnathan Whitehead will remain in his current position?

One of the possibilities is that they someone has realised that the people they thought new enough to gather evidence, in fact were not competant to. They will restrucfture the team and find people more technically competant.

Just another wild guess,

David; March 6, 2006 at 4:30:00 PM EST
raybeckerman said...: Dear David Fedoruk,

You seem to be assuming facts not in evidence -- i.e. that the RIAA is operated rationally.

Best regards,

Ray; March 6, 2006 at 5:49:00 PM EST

Post a Comment

JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove