Recording Industry vs The People: RIAA Tries to Keep Defendant's Lawyers from Seeing MediaSentry Contracts in UMG v. Lindor

Wednesday, September 27, 2006

RIAA Tries to Keep Defendant's Lawyers from Seeing MediaSentry Contracts in UMG v. Lindor

In UMG v. Lindor, the RIAA has made a motion to prevent the defendant's lawyers from seeing plaintiffs' contracts with MediaSentry.

Notice of Motion for Protective Order (MediaSentry agreements)*
Memorandum of Law*
Declaration of Richard Gabriel*
Exhibit D to Declaration of Richard Gabriel*
Declaration of Bradley Buckles*

In the Buckles declaration they admitted that the "instructions and parameters" for MediaSentry's "on-line investigations" were developed by the RIAA's lawyers. (See Buckley Declaration, paragraph 6, page 2).

* Document published online at Internet Law & Regulation

Keywords: digital copyright online 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

7 comments:

StephenH said...: I hope RIAA does not win this protective order! I have a feeling that there is info in that order that will lead to many defendants winning their RIAA cases, as well as they could fear an end to this.

I have some cases I would site in opposition:

* Newmark vs Turner / Paramount vs ReplayTV - This situation was encountered because they claimed EFF was a competitor of MPAA. It was denied!

* I would site the "Red Light Camera" case in San Diego, where they ruled that "automated enforcement" where the company gets a commission off of each guilty verdict could not be admissible in court.

* I would supoena a MediaSentry Executive as a witness; September 27, 2006 at 6:19:00 PM EDT
BasicTek said...: I read through some of the documents. I especially liked where they said something to the effect that releasing the mediasentry info to Ray was like a bank releasing their pin numbers to thieves. LMAO

FACT, It is well known the RIAA will sink to any low (suing dead people), release phony press releases (downloading costing them billions), and cheat their own customers (18,000 lawsuits and counting) to extort money from innocent people.

FACT, The RIAA managed to convince a judge to fine Gonzalez $750 per ($1)song for downloading NOT sharing. Imagine if that were applied to REAL crimes, someone steals a $10 CD and they have to pay the RIAA $7,500. Someone steals a $10,000 auto they have to pay the owner $7,500,000.

Now imagine FACT #3 Downloading is NOT stealing, nothing is ever stolen, no loss has ever been proven, yet their lawyers presume to slander Ray and compare themselves to a bank. When is the last time your bank sued your for $3-$7K for copying your bank statement???

Sounds to me like they have something serious to hide like the fact that all their cases are based on BS!!!; September 27, 2006 at 8:28:00 PM EDT
Alter_Fritz said...: This comment has been removed by a blog administrator.; September 27, 2006 at 10:20:00 PM EDT
Alter_Fritz said...: one more comment regarding the bank/codes analogy

this R.L.G. (the guy that accordingly to screenshot-"evidence" is a copyrightinfringer himself!) is saying in the Memorandum Brief that defense cousel runs a blog that wants to put an end to the lawsuits against online copyrightinfringers.
By using the bank/codes/thiefs analogy he paints Mr. Beckerman as an accomplice to lawbreaking people.
Thats outrageous!
Nowhere in Mr. Beckermans Blog does he say he wants to put an end to RIAA-lawsuits against infringers.
Mr. Richard L. Gabriel of Holme, Roberts & Owen LLP makes again total misleading statements to the judge.

The blog is "devoted to the RIAA's lawsuits of intimidation brought against ordinary working people".
If I read correctly then nowhere does Mr. B. says that the RIAA should not sue true copyrightinfringers if they don't agree to cease and desist after being contacted by the SS-Center.
I assume that the blogowner is a law-abiding citizen and I speculate that he does not intend to put an end to ligitimate reasonable actions against real criminal copyrightinfringers, but I interpret his efforts in maintaining this blog to put an end to the RIAA-terrorcampaign, using their SS-center and those highly questionable "investigation" tactics that already have been proven in prior cases -where the RIAA has withdrawn after faced with counterclaims- to be unreliable to identify copyrightinfringements flawlessly, against people that have done nothing unlawfull! People that do not operate computers or people that operates computers that can not run the software in question as an example!

And of course needs the defendant to know how the investigators do their investigations! The Defendant claims she didn't do anything unlawfull, so she needs to know how the plaintiff's alledgedly identifies her. For that purpose it is necessary for the defendant to know the contracts regarding how the RIAA want MS to do the "identification".
So far it simply could be that the techniques the RIAA says is so highly classified and propritary and can't be disclosed to the defendant is infact nothing more then 4 bags of tennisballs with numbers in it.

Comparing this with the bank and codes and thiefs analogy made by Mr. Gabriel; The defendant does not want to have the codes the RIAA gave to MS. The defendant wants to see if the way "the codes are generated" is reliable and secure!
I don't want my bank to tell me their codes with which they protect my money, but if they refuse to tell me the process how they protect my money by saying we can't disclose this information because it's a mental secret of our Lawyers and the process we use to protect your money is propritary, then I would not trust this bank.
It's very likely their protection(investigation) is nothing more then put money in a sock(play lucky IP-numbers with 4 bags of tennisballs)

P.S. Oh, and I find it interesting that Mr. R.L.G. and also this Mr. Buckley in his Declaration can already say that the defendant in this case is a copyrightinfringer. I thought that's what this lawsuit is all about and that this decission lays in the hand of the judge and that no verdict is made so far. Isn't that the way law in NY works? And as long as this is not clear then the defendant is only an "alledged Copyrightinfringer"?; September 28, 2006 at 3:06:00 AM EDT
raybeckerman said...: Anyone else find it interesting that Mr. Buckles states that the 'instructiosn and parameters' for MediaSentry's "investigation" were developed by the RIAA's lawyers?

How scientific is that?; September 28, 2006 at 9:16:00 AM EDT
Alter_Fritz said...: Ray wrote: "How scientific is that?"

It's highly scientific when RIAA lawyers do it.
As scientific as astrophysics!

http://www.interesting-people.org/archives/interesting-people/200305/msg00117.html; September 28, 2006 at 2:49:00 PM EDT
raybeckerman said...: Dear "virtualchoirboy"

It's unheard of in litigation not to be able to inquire fully into the expert's compensation.; September 28, 2006 at 11:43:00 PM EDT

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove