Transcript obtained in Warner v. Does 1-149

We have obtained a copy of the transcript of the proceedings before Judge Owen which took place on Friday, May 19, 2006, in Warner v. Does 1-149:

Transcript of oral argument of John Does' motion to (a) vacate ex parte discovery order, (b) quash subpoena, and (c) sever and dismiss as to John Does 2-149*

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.

The following is an excerpt from the transcript:

18 THE COURT: You are skipping over one sentence, which
19 it reads that: "Exhibit A identifies on a
20 defendant-by-defendant basis that each defendant has, without
21 the permission or consent of the plaintiffs, downloaded."
22 MR. GABRIEL: Distributed and --
23 THE COURT: But you don't need to go beyond
24 "downloaded," do you?
25 MR. GABRIEL: I submit we don't. What the law
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1 requires, contrary to what Mr. Beckerman says, is we need to
2 allege in a Complaint that we own a valid copyright, that we
3 have registered the valid copyright, and that the plaintiffs
4 had violated exclusive rights.
5 THE COURT: Isn't that the end of it?
6 MR. GABRIEL: And we have done that.
7 MR. BECKERMAN: Ask him to identify which songs the
8 defendant downloaded.
9 THE COURT: He did. He does in Exhibit A.
10 MR. BECKERMAN: No, he does not.
11 THE COURT: Yes, he does.
12 MR. BECKERMAN: If he does, he misrepresents to the
13 Court. Ask him what basis he has --
14 THE COURT: Counsel, look at Doe 37. The artist is
15 named what, Linkin Park, "One Step Closer."
16 MR. BECKERMAN: Your Honor, Mr. Gabriel described to
17 your Honor the investigation that he conducted. He said to
18 you -- he represented to your Honor that the investigation
19 consisted of his investigators at MediaSentry, using some
20 proprietary software and techniques, went on and downloaded
21 these songs, and that's what Exhibit A is. He's saying that
22 the plaintiffs' agents downloaded those songs.
23 THE COURT: He said the defendants downloaded it.
24 They allege the defendant downloaded.
25 MR. BECKERMAN: He has no basis for alleging that and
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1 he told your Honor what the basis was.
2 THE COURT: He said if you go to trial and it doesn't
3 end up being proven, you have won your case.
4 MR. BECKERMAN: But he is here to admit to you that he
5 has no evidence of anybody -- of the defendants having
6 downloaded those songs. He has no clue as to how the
7 defendants --
8 THE COURT: Counsel, would you tell me how you get,
9 for example, to Doe 37? What I'm hearing here I'm having
10 trouble putting in some frame of rationality.
11 MR. GABRIEL: Yes, your Honor.
12 THE COURT: Tell me, how do you get to the seven or
13 eight songs for Doe 37?
14 MR. GABRIEL: We find these particular Doe share
15 files, as a number of all the other Does. We then will take a
16 picture of what is in their computer shared file.
17 THE COURT: Showing where it went?
18 MR. GABRIEL: It doesn't show a line. We know it got
19 to their computer, and we believe that provides a sufficient
20 Rule 11 basis for asserting downloading. Somehow it got to
21 their shared drive, and we do take it and make -- we then
22 download ourselves so we can confirm that it is our copyrighted
23 recording by listening to it, by making sure this is our
24 recording.
25 THE COURT: Run this by me again, please. You have
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1 somebody go where?
2 MR. GABRIEL: Right into Kazaa, one of these programs
3 like you or I could.
4 THE COURT: Right.
5 MR. GABRIEL: And then they will look for people's
6 shared files who have a large number of music files.
7 THE COURT: How do you get, for example, to Mariah
8 Carey's "One Sweet Day"?
9 MR. GABRIEL: By looking at the person's shared file.
10 We get the whole shared file, and not everything --
11 THE COURT: But tell me, whose shared file?
12 MR. GABRIEL: We get the defendant's shared file, the
13 shared file on the computer associated with the defendant.
14 THE COURT: With at this point only identified as 37?
15 MR. GABRIEL: That's correct. Actually, more
16 specifically identified by this Internet protocol address that
17 I referred to you.
18 THE COURT: I got you.
19 MR. GABRIEL: So we know the numbers --
20 THE COURT: You look in that person's shared file?
21 MR. GABRIEL: Right.
22 THE COURT: And you see that they've got Mariah Carey
23 in there?
24 MR. GABRIEL: Right.
25 THE COURT: OK. And there is no authorization for
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1 that?
2 MR. GABRIEL: Right.
3 MR. BECKERMAN: Nope, your Honor, they have no
4 knowledge of how that file got there. It might be completely
5 lawful. It could be a lawful --
6 THE COURT: It might be, but you know, if the bank
7 robber is running away from a bank in a car and he's got a bag
8 with $5,000 in the back, he might say I took that out as a
9 loan, and, therefore, you've got an issue of fact as between
10 him and the bank as to whether this isn't the guy they gave
11 $5,000 at the point of a gun. So that might be -- what you
12 just said is in my opinion what kills your position here.
13 They've got this and if it might be, and it is logical
14 that it is and entirely possible that it could be, they want to
15 know who it is and you want to depose him, right?
16 MR. BECKERMAN: No, they want to sue him.
17 THE COURT: Sue him, of course.
18 MR. BECKERMAN: Your Honor, the plaintiff has the
19 burden of establishing that they have a case. If your Honor --
20 THE COURT: I find on these papers they have
21 established that, and, therefore, your motion to suppress these
22 subpoenas is denied.

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:

Complaint.*
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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