In Warner v. Does 1-149 the first major oral argument has been set in 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.
The confrontation is scheduled to take place on Friday, May 19th, at 2:15 P.M., at 40 Centre Street, New York, New York, Court Room Number 1106, before United States District Judge Richard Owen.
Proceedings are open to the public.
Among the issues to be decided:
-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.
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 (as of this writing, defendants' reply papers have yet to be served):
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 have 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
The RIAA agreed to a stay, but argued that the stay should only apply to the moving defendants and not to the other 147 defendants.
March 31, 2006, Letter of J. Christopher Jensen Opposing Stay as to Other 147 Defendants
The Court has not yet ruled on the stay.
* Document available online at Internet Law & Regulation
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