Recording Industry vs The People: RIAA Balks at Producing Report of Hard Drive Inspection in UMG v. Lindor

Tuesday, October 24, 2006

RIAA Balks at Producing Report of Hard Drive Inspection in UMG v. Lindor

Two and a half months after it made a "mirror image" of the hard drive of the computer in Marie Lindor's apartment, the RIAA has yet to produce its forensic expert's report on his inspection of the drive.

Although initially saying they would get the report to Ms. Lindor's lawyers by October 12th, the RIAA's lawyers now claim that the only deadline they need to concern themselves with is the December 31st discovery cutoff.

Ms. Lindor's lawyers have asked the Magistrate Judge to sanction the plaintiffs:

October 23, Letter of Ray Beckerman (Hard Drive Report)*
Attachments to October 23, Letter of Ray Beckerman (Hard Drive Report)*

* Document published online at Internet Law & Regulation

Commentary and discussion:
Digital Music Weblog
p2pnet.net

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

3 comments:

Alter_Fritz said...: 1) I don't think Ray will speculate here publicly.
2) I will! ;-)
3) One comment (in german to be sure with respect to responsibility matters)

2) One posibility could be that their experts have so many HDD's to analyse (RIAA is terrorising tens of thousands of people with 1 or maybe even more HDD's to analyse) that they simple hadn't the time to do the Lindor one completely like they would so far.
Or they are pissed that their findings so far (what Rich is indicating that he has talked to Ray so far) do NOT help them to prove that the defendant Mrs. Lindor did anything against the copyrightlaw. And that's why they now play on time to make it harder for Ray to solve this case in favour of Mrs. Lindor.
What you can read from Rich's mails -I guess- is, that even the plaintiffs don't believe any longer that Mrs. Lindor is the alledged infringer and that plaintiffs want to tortu.. sorry; question a few other people that might have had access to the computer in question where they made the mirror image from.

3) comment in german: Man was für ein schleimiger Typ ist dieser RIAAanwalt Gabriel? Erst einen auf "klar wir können das zivilisiert ohne irgendwelche richterlichen Anordnungen regeln" machen, dann die Gegenseite hinhalten mit Entschuldigungen von wegen viel Arbeit und so, und dann jetzt in der letzten Mail so tun als ob es nie eine "gentlemenlike"-Absprache bezüglich Terminen gegeben hat ohne das ein Richter da ein Machtwort hätte sprechen müssen. Wie war das doch gleich nochmal mit den "Sharks"?!
Meiner Meinung nach unterirdischstes Niveau dieses RIAAanwaltes Gabriel. Das wird nur noch von diesem RIAAanwalt Krichbaum getoppt!

Also ich würde -angenommen, das das SS-center beim durchleuchten der Person die man um 3750$ "erpressen" will, einen Fehler macht und ein "Opfer" auswählt das arm ist, nix mehr zu verlieren aber dank liberaler Waffengesetze in den USA eine Knarre hat, ausflippt und diesen Mr. Gabriel voll Blei pumpt- diesem gut betuchten AnwaltsOpfer jedenfalls nicht eine einzige Träne nachweinen!
Oder wie Ray es aaO formuliert hat: I never know what the RIAA's going to do. What they should do is jump in the lake. Ray, das ist aber unfair den Fischen gegenüber! ;-) Es würde genügen wenn die RIAA(anwalts)typen und die "organisierte Musik" sich einen Strick nehmen würde! Die sind nutzlos im digitalen Zeitalter! Konsumenten und Künstler brauchen diese gierigen schleimigen Typen nicht mehr!; October 24, 2006 at 3:51:00 PM EDT
raybeckerman said...: My guess is they didn't like the report they got, so they made him go back and do it over.

Then they didn't like that report, so they made him do that one over too.

Etc., etc.

He's probably working on his sixth report trying to make them happy as they try to make a silk purse from a sow's ear.; October 24, 2006 at 5:45:00 PM EDT
Alter_Fritz said...: nearly 4pm in "RIAA-Richard's" office.
Isn't that a little bit late to first read the digital music weblog and after that take 4 and a half minute here with your Internetexploder to figure out what this crazy german means?
http://img93.imageshack.us/my.php?image=iviewcapturedate2710200ys0.png

:-P; October 27, 2006 at 6:23:00 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