Recording Industry vs The People: In Elektra v. Schwartz, Ms. Schwartz Files Initial Disclosures and Timothy Reynolds Seeks Pro Haec Vice Admission

Monday, December 11, 2006

In Elektra v. Schwartz, Ms. Schwartz Files Initial Disclosures and Timothy Reynolds Seeks Pro Haec Vice Admission

Two developments in Elektra v. Schwartz in Brooklyn.

Ms. Schwartz has filed her "initial disclosures":

Defendant's initial disclosures*

Timothy Reynolds of Holme Roberts & Owen has filed for pro haec vice admission to the Court (admission for this case only); Ms. Schwartz's lawyer has suggested to Judge Trager that before deciding the motion he should find out whether Mr. Reynolds was in fact the author of the November 1, 2006, letter signed by Richard Guida telling the judge that AOL had confirmed that Ms. Schwartz owned an account that had been used for downloading and distributing hundreds of copyrighted songs.

Pro haec vice motion*
Reynolds affidavit in support of pro haec vice motion*
Declaration of Ray Beckerman Suggesting Court Defer ruling on pro haec vice motion pending further investigation*

* 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

8 comments:

Alter_Fritz said...: Timothy M. Reynolds wrote: on the 4th day of December 2006 among other things; " 4. There are no pending disciplinary proceedings against me in any State or Federal Court. "

Ray I have no knowledge of your laws, but I have a feeling that I non the less understand from a laypersons view what is happening here. Please correct me if necessary and explain the situation in your own words

"RIAA-Timy" has so far officially nothing to do with this case. At some time a few days ago (maybe after your comment regarding him "Just for the record, [...] not by Mr. Guida. Mr. Guida is a young fellow who works for a fairly large Connecticut-based firm that is acting as "local counsel". [...] the words came from Mr. Reynolds, not Mr. Guida.[...] [Guida] is a young kid just starting out, so I pity him more than blame him") all the alarm bells were ringing in the RIAA-HQ because if the nov. 1st letter would really be the words/written by "RIAA-Timy" then that would be at least some kind of formal error.
Now "RIAA-Timy" wants with this pro hac thingy archive that he has something to do with the case and probably he hopes this way that no one (a judge that could possibly change the facts with regards to his Statement #4 for example) will notice his acting on this case prior to his becomming a guy for RIAA in THIS specific case.

Thats my feeling about my understanding of the situation at the moment.

Corrections, if necessary and/or comments please!; December 11, 2006 at 10:27:00 PM EST
Alter_Fritz said...: Hm, looking at the November 1st letter and the december 11th one close together; is it just me that sees this 2 completely different styles to write letters like the "R" for example in Richard L. Guida ?

http://img166.imageshack.us/my.php?image=2xguidaqu4.png; December 12, 2006 at 2:43:00 AM EST
Alter_Fritz said...: This comment has been removed by a blog administrator.; December 12, 2006 at 6:08:00 AM EST
Alter_Fritz said...: http://img143.imageshack.us/my.php?image=2xguida1xgabrielzh9.png; December 12, 2006 at 6:28:00 AM EST
Alter_Fritz said...: This comment has been removed by a blog administrator.; December 12, 2006 at 6:42:00 AM EST
Alter_Fritz said...: This comment has been removed by a blog administrator.; December 12, 2006 at 7:23:00 AM EST
raybeckerman said...: 1. It's got nothing to do with the signatures. The November 1st letter was signed by Richard Guida. The December 11th letter was signed by his secretary for him.

2. It's their standard operating procedure in contested cases to have the HRO lawyer running the case make a motion to be admitted pro haec vice.

3. It may be that the sudden realization that Mr. Reynolds's November 1st letter may have gotten Richard Guida into trouble that reminded them to make the pro haec vice motion in this case, but on that I would only be speculating.; December 12, 2006 at 10:16:00 AM EST
Alter_Fritz said...: What a pity! :-(
I already imagined RIAA-Richard1 behind bars ;-); December 12, 2006 at 2:15:00 PM EST

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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