Saturday, June 10, 2006

Judge Owen Issues Order Denying John Does' Motion in its Entirety in Warner v. Does 1-149

Judge Owen has issued an order denying John Does' motion to (a) vacate the ex parte discovery order, (b) quash the subpoena, and (c) sever and dismiss the action as to John Does 2-149, in Warner v. Does 1-149:

Order Denying John Does' Motion to Vacate Ex Parte Discovery Order, Quash Subpoena, and Sever and Dismiss as to John Does 2-149*

This is a transcript of the oral argument which took place 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 raised 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 legal papers raising these issues are:

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*

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

A similar motion was made in Motown v. Does 1-99, before Judge Naomi Reice Buchwald, and is pending.

Other similar motions made in Atlantic v. Does 1-25 were denied, by Judge Swain, the last ruling coming on the heels of Judge Owen's.

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:

"We believe that the rulings from Judge Owen and Judge Swain are totally incorrect. However, under the federal rules, they are not appealable. And because the RIAA's tactic is to discontinue the case before the rulings do become appealable, we will never be able to obtain the guidance of the Second Circuit on these most important issues affecting our country."

* Document available online at Internet Law & Regulation

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


Ludwig Krippahl said...

Dear sirs,

I'm not sure this is the right place for a question, but I wonder why no one disputes the notion that an mp3 file is protected by copyright.

An mp3 file is essentially a set of parameters for sine functions that are combined to generate the sound. These are calculated by solving a mathematical problem of fitting a cobination of sine functions to a data set (the original wav file). Shouldn't the extension of music copyright to parameters of mathematical equations be legally questionable? After all, not even mathematitians can copyright such data...

Another problem is that the encoding itself is completely arbitrary, so it is impossible (mathematically impossible) to specify which set of values are to be covered by copyright law for any given song, since any other set of values can be used for the same purpose just by changing the encoding.

Basically, computers are just complex calculators. All computer files are sets of numbers, and all computer operations are mathematical operations. Given that numbers and mathematical formulae cannot be copyrighted, should this not raise legal issues?

Thank you for your attention.

StephenH said...

Here's an interesting idea. Try to make a motion for summary judgement before RIAA dismisses the case. If a lot of does do this, the RIAA will have a longer time, and be hard to through out the case to refile. I bet the RIAA will hate this because it will cost them money, and slow it down.!