Recording Industry vs The People: RIAA Subpoenas Ms. Lindor's Son's Computer

Tuesday, November 21, 2006

RIAA Subpoenas Ms. Lindor's Son's Computer

In UMG v. Lindor, a case against a home health aide who has never used a computer, the RIAA has now subpoenaed the computer of Ms. Lindor's adult son, who lives four (4) miles away from her. Ms. Lindor's son, a paralegal in a law firm, has hired counsel to make a motion to quash the subpoena:

November 21, 2006, Letter of Richard A. Altman to Magistrate Robert M. Levy (Quash Subpoena)*
Attachment to Letter of Richard A. Altman (Subpoena)*
Attachment to Letter of Richard A. Altman (Objections to Subpoena)*

Ms. Lindor joined in her son's application:

November 22, 2006, Letter of Ray Beckerman Joining in Application of Woody Raymond to Quash Subpoena*

Ms. Lindor's son is represented by Richard A. Altman, Esq., of Manhattan, one of the first lawyers to take on the RIAA's ex parte "John Doe" subpoena process, back in 2004, in Elektra v. Does 1-9.

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
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Digital Music Weblog

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

5 comments:

Alter_Fritz said...: quote: "[...]and/or music listening devices including iPods and MP3 players in your possession, custody or control."

A) This guy is NOT the defendant but a noninvolved party in this civil action against Marie Lindor.
B) An mp3 player (Hello RIAA the iPod IS an MP3 player so why are you specifying it extra!) could not have had the IP address the RIAA is claiming their investigators downloaded copyright soundrecordings from, so it is totally clear that what the RIAA is trying to do here is a fishing expedition!!

Lets hope the judges sees that the RIAA is continuing here their driftnet fishing expedition against everyone they can get in their crosshairs, and stops them.

Hey RIAA are you aware that President Bush has on his personal iPod sound recordings from the Beatles that he could NOT have optained a licence for in the itunes music store?! Why are you demonized guys are not trying to subpoena HIS iPod?! At least it "could be possible" that -not only the unlicensed Beatles songs he already admitted to have and that must be copied in an unlawful act according to your RIAA own informations you are [falsely] spreading on your website- but all the others also were all copied from the IP address you are claiming were used for the alledged copyrightinfringements by Marie Lindor! It could be Mr Bush visited Miss Lindor and connected his personal ipod to this strange computer that she did not own with your named IPaddress according to the courtpapers.
Are you RIAA-Guys afraid that Mr. Bush has more power that the Poor, the average working People, the Sick, the underage Children, and finaly even the dead?

Please Mr. President Bush; since the RIAA is 3/4 nonamerican companies give the CIA guys a call to take care of them! RIAA is not only a terrorising danger for your country, but also to you Mr. President personly since if I understand it correctly you are not protected against lawsuits for stuff you do in your president sparetime (I guess listening to the Beatles is sparetime) ;-)

(serious question following)
Ray, please explain me in 2-3 sentences: What are the differences between Judge Levy and Judge Trager in this cases. Is one of them the "boss" from the other or why does some stuff related to one specific case (here Lindor) is handled by different judges?; November 22, 2006 at 2:00:00 AM EST
raybeckerman said...: alter_fritz, take a look at the p2pnet.net article on the woody raymond subpoena... it has a photo of your favorite lawyer...

Judge Trager is the "Article 3" judge... which means he has life tenure. The Magistrates are appointed for a term of years; they are "statutory" judges.

It is customary in the federal courts to assign some of the legal workload to the magistrate. Typically, magistrate judges handle the following:

discovery;
settlement conferences;
criminal arraignments;
hearings on service of process;
default judgments;
trials where both sides have consented to have the trial handled by the magistrate rather than the article 3 judge; and
any other kind of matter where the judge wants to refer it to the magistrate for "report and recommendation".

In this case all discovery issues were raised before the Magistrate Judge. This particular issue, since it related to "preclusion", he felt should go to the Article 3 judge. The Article 3 judge has now bounced it back for the Magistrate to give his "recommendation". Sometimes the judge will accept the Magistrate's recommendation, sometimes he'll reject it, sometimes he'll modify it.; November 22, 2006 at 3:24:00 PM EST
Alter_Fritz said...: Thanks Ray for this explaination regarding the judges system.

(I already was aware of the photo. RIAA-Richard1 was so nice to provide the original on their site to share it with the world) ;-); November 22, 2006 at 3:31:00 PM EST
Alter_Fritz said...: not that the CIA comes after me!
I didn't made it up, the President admitted on TV to have the Beatles on his Ipod.
The US-president a CD ripping Pirate?; November 22, 2006 at 4:05:00 PM EST
Anonymous said...: Isn't it true that the RIAA gets the money from internet downloads? How much do the Artists get? I don't think that the RIAA gives a hoot about how much the Artists get because they don't care about the artist! Now we have to be policed on the internet for music? Why don't they go after the sex offenders instead? I think the RIAA are all a bunch of greedy losers who don't care about Artists.; April 3, 2007 at 10:26:00 AM 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