Friday, May 19, 2006. In Warner v. Does 1-149 today, at the first major oral argument of a motion by "John Doe" defendants to (a) vacate the RIAA's ex parte discovery order, (b) quash the subpoena issued pursuant to the order, and (c) sever and dismiss the case as to all "John Does" other than Doe #1, Judge Richard Owen terminated the oral argument with an indication that he was denying the John Doe defendants' motion to vacate the ex parte discovery order and quash the subpoena issued to ISP Time Warner Cable. The judge did not indicate how he would rule on so much of the motion as sought to sever and dismiss as to John Does 2-149 for misjoinder.
Among the issues which had been put in issue by the motion papers were:
-whether the evidence the RIAA had submitted in support of the ex parte order sufficiently made out a prima facie case;
-whether the evidence the RIAA submitted was technically valid;
-whether merely 'making available' is a copyright infringement;
-whether the complaint in the action adequately pleads copyright infringement; and
-whether there was any basis for joining 149 different defendants in one case.
During the argument the Judge first indicated it was his understanding that plaintiffs had alleged that the exhibit A songs were downloaded by the defendants.
When the RIAA's lawyer conceded that the downloads were by the RIAA's own investigators, the Judge said the RIAA had the right to find out if in fact the defendants had downloaded them too.
When the defendants' lawyer -- the undersigned -- brought to the Court's attention that files on the defendants' computer might have been downloaded lawfully, the Judge cut off the defendants' lawyer's argument, and said that was the weakness in the defendants' case -- the word "might". The judge then indicated he was denying defendants' motion.
Earlier in the argument, when defendants' lawyer said that the plaintiffs' lawsuits were 'wrecking people's lives', the Judge asked where defendants' lawyer was getting that from, and indicated that in view of that statement he was inclined to disbelieve anything defendants' lawyer might say.
The proceedings were recorded, and a transcript will be posted when it becomes available.
Warner v. Does is the case where two Two "John Does", one from the Southwest, the other from the Greater New York area, joined forces in Manhattan to fight back against the RIAA.
As it did in Motown v. Does 1-99 , the RIAA hesitated to adopt the strategy it had employed in Atlantic v. Does 1-25, and refrained from introducing any evidence in opposition to the defendants' motion. In Atlantic it had introduced a second declaration by RIAA executive Jonathan Whitehead which contradicted his first declaration, in attempting to rebut the attack by computer programmer Zi Mei on the legitimacy of the RIAA's "investigation". In this case, as in Motown, it only introduced a memorandum of law by its counsel.
The legal issues have been staked out in the following documents:
Ex Parte Order.*
Second Ex Parte Order.*
John Does' Notice of Motion*
Affidavit of Morlan Ty Rogers in Support of Motion*
Affidavit of Zi Mei in Support of Motion*
Memorandum of Law in Support of Motion*
Memorandum of Law in Opposition*
Reply Memorandum of Law in Support of Motion*
John Does 37 and 61 had asked Judge Owen for a stay of the ex parte order and subpoena pending determination of their motion, since the turning over of their identities before the motion is decided would moot the motion.
March 31, 2006, Letter of Morlan Ty Rogers Requesting Stay
March 31, 2006, Letter of J. Christopher Jensen Opposing Stay as to Other 147 Defendants
Two similar motions remain pending. In Motown v. Does 1-99, all 3 aspects of the motion are pending before Judge Naomi Reice Buchwald. In Atlantic v. Does 1-25, the first aspect of the motion -- the request for vacatur of the ex parte discovery order on the ground of an insufficient evidentiary showing -- is pending, while the other 2 aspects of the motion (severance and dismissal for misjoinder, plus quashing of subpoena due to insufficiency of complaint) were decided in the RIAA's favor; the Atlantic case is before Judge Loretta Swain.
All of the above cases are in Manhattan.
Other motions which may be pertinent to the John Does' motions, because they involve the legal sufficiency of the RIAA's standard complaint, are Maverick v. Goldshteyn before Judge Trager in Brooklyn and Elektra v. Barker before Judge Karas in Manhattan.
Personal comment from Ray Beckerman, one of attorneys for defendants:
"As the attorney for defendants I have this comment to make on today's proceedings:
"I am very disappointed in today's proceedings. I was hoping for a full and fair opportunity to air the landmark issues that were before the Court. Instead, it seemed that the Court was not familiar with the facts or the law, and placed a burden on the defendants to disprove the unsupported allegations the plaintiffs' counsel had irresponsibly made in their complaint and discovery application. This approach of course finds no support anywhere in our legal system, and was clearly erroneous.
"The judge first indicated it was his understanding that the plaintiffs had evidence that the defendants had made unauthorized downloads. When the RIAA's counsel -- to his credit -- admitted that the evidence showed only downloads by plaintiffs' own investigators, the judge then ruled that the RIAA is entitled to bring lawsuits to find out if the defendants had in fact downloaded the songs illegally, and cut off the oral argument.
"The judge also indicated that he was disinclined to believe anything I would say because I had said that the RIAA's lawsuits 'wreck people's lives'. I do not think that was an appropriate approach for a judge to take, especially on such important issues.
"If the Court's ruling were appealable, I would file an appeal. Unfortunately it is not.
"And it will never be subject to review by an appeals court, because the RIAA will -- as it always does -- discontinue the John Doe lawsuit.
"All in all, this was a dark moment for our country."
* Document available online at Internet Law & Regulation
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