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
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