2 John Does From Across the Country Team Up to Fight Back Against RIAA in Warner v. Does 1-149

Two "John Does", one from the Southwest, the other from the Greater New York area, have joined forces to fight back against the RIAA in Warner v. Does 1-149.

What they have in common is that both discovered recently that they are named as "John Does" in the same case pending in Manhattan federal court.

In September, 2005, the RIAA brought one of their typical John Doe cases, in Manhattan federal court, Warner Bros. Records v. Does 1-149.

Complaint.*

The case was first assigned to Judge John G. Koeltl, who recused himself.

The case was then reassigned to Judge Alvin K. Hellerstein, who likewise recused himself.

Then the case was reassigned to Judge Richard Owen, who granted the RIAA's "ex parte" applications for discovery, and authorized subpoenas to be served on the internet service provider Time Warner Cable.

Ex Parte Order.*
Second Ex Parte Order.*

The subpoena is returnable Monday, April 3rd.

John Doe #37 and John Doe #61 have both hired Ty Rogers and Ray Beckerman of Beldock Levine & Hoffman LLP to make a motion to (a) vacate the ex parte discovery orders, (b) quash any subpoenas issued under the orders, and (c) sever and dismiss the action as to John Does 2-149.

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*

John Does 37 and 61 have asked Judge Owen for a stay of the ex parte order and subpoena pending determination of their motion, since the turning over of their identities before the motion is decided would moot the motion.

March 31, 2006, Letter of Morlan Ty Rogers Requesting Stay

The RIAA agrees to a stay, but argues that the stay should only apply to the moving defendants and not to the other 147 defendants.

March 31, 2006, Letter of J. Christopher Jensen Opposing Stay as to Other 147 Defendants



Ray Beckerman, the author of this blog and one of the attorneys for the moving parties, had this comment:

It is a matter of great significance that two different John Does have teamed up in the same case. This cuts the legal costs to each litigant by half, thus reducing the overall economic balance which ordinarily inheres in these cases. I hope this presages a new trend: people banding together to fight back. The old adage 'united we stand, divided we fall', is very important in the war against the RIAA's litigation machine.

* Document available online at Internet Law & Regulation

Keywords: copyright 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

Judge Owen Grants Ex Parte Discovery Orders after Judges Koeltl and Hellerstein Recuse Themselves in Warner v. Does 1-149

In September, 2005, the RIAA brought one of their typical John Doe cases, in Manhattan federal court, Warner Bros. Records v. Does 1-149.

Complaint.*

The case was first assigned to Judge John G. Koeltl, who recused himself.

The case was then reassigned to Judge Alvin K. Hellerstein, who likewise recused himself.

Then the case was reassigned to Judge Richard Owen, who granted the RIAA's "ex parte" applications for discovery, and authorized subpoenas to be served on the internet service provider Time Warner Cable.

Ex Parte Order.*
Second Ex Parte Order.*

The subpoena is returnable Monday, April 3rd.

* Document available online at Internet Law & Regulation

Keywords: copyright 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

John Doe #48 Replies to RIAA in Motown v. Does 1-99

John Doe #48 has served his reply memorandum of law* in Motown v. Does, pointing out that the RIAA's opposition papers were "smoke and mirrors" since, among other things, they

-ignored controlling legal authorities;
-offered no evidence at all;
-made a fabricated contention that Does 1-99 acted together;
-did not dispute the facts contained in the affidavit of programmer Zi Mei;
-attempted to confuse the Court by mixing up "expedited" discovery with "ex parte" discovery;
-cited completely irrelevant authorities;
-frivolously argued that "ex parte" decisions, including the Court's own "ex parte" ruling in this case, should be treated as authoritative precedents;
-frivolously argued that treaties are the same as statutes, and that a treaty should take precedence over the statute which authorized it;
-frivolously argued that the Court was bound by a letter from an employee of the Copyright office;
-frivolously argued that merely having files in a shared files folder is in and of itself a copyright infringement; and
-ignored the RIAA's own testimony before the FTC that most people with file sharing software do not even know what files on their computer are subject to being "shared".

The reply memorandum completes the briefing of John Doe's motion to (a) vacate the ex parte discovery order, (b) quash the subpoena, and (c) sever and dismiss as to John Does 2-99, in Motown v. Does 1-99, Docket No. 05 CV 0112 (NRB), pending before Judge Naomi Reice Buchwald in the United States District Court, Southern District of New York, in Manhattan.

Judge Buchwald has stayed her previously issued ex parte discovery order and subpoena pending the determination of John Doe #48's motion.

* Available online at Internet Law & Regulation

Keywords: copyright 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

SONY BMG Withdraws from Motown v. Does 1-99

Once again, SONY BMG and its affiliates have withdrawn from one of the RIAA v. Consumer cases, this time in Motown v. Does 1-99, pending in federal court in Manhattan before Judge Naomi Reice Buchwald.

So ordered Notice of Voluntary Dismissal

This is the case in which John Doe #48 has moved to vacate the ex parte discovery order, sever and dismiss as to John Does 2-99, and quash the subpoena, and in which the Judge has stayed the subpoena and discovery order as to all defendants pending the Court's determination of the motion.

Once again, no one from the plaintiff's side has given any indication as to why SONY and its affiliates withdrew from the case.

Keywords: copyright 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

Judge Denies Guardian Ad Litem Motion in Priority v. Brittany Chan; RIAA Argues Brittany and Her Parents Should Have to Pay Guardian's Fees

In Priority Records v. Brittany Chan, the Michigan case against 14-year old girl, the Judge has denied the RIAA's request for a guardian ad litem.

The Court held that it was necessary to appoint an independent guardian ad litem to defend the minor defendant, but rejected the procedure suggested by plaintiff, both on the ground that it would not serve the interests of the child or the interests of justice, and did not provide for a method to ensure that the guardian ad litem gets paid for his or her services. The court ordered the RIAA to submit a functional proposal.

The court's denial of plaintiff's motion was "without prejudice" (meaning plaintiff could make a new motion if it so chooses).

Order denying appointment of guardian ad litem*

Subsequently, the RIAA submitted a response to the Judge's order, arguing that Brittany Chan herself, and/or her parents, should have to pay the guardian ad litem's fees.

RIAA Response to Judge's Order*

* Document available online at Internet Law & Regulation

Keywords: copyright 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

RIAA Appeals From Magistrate's Rulings in Santangelo; Judge McMahon Rejects Appeal, Affirms Magistrate

We have learned that the RIAA appealed from the Magistrate Fox's ruling in Elektra v. Santangelo, in which he had struck most of the RIAA requests for admission, and that Judge McMahon has rejected the appeal, instead affirming Magistrate Fox's decision.

These are the "Requests for Admission" and Ms. Santangelo's lawyer's objections to many of them:

Ms. Santangelo's Objections to Request for Admissions*

The Magistrate's ruling was as follows:

"#7,19,26,28,29,30, are to be answered, all others are stricken."

Judge McMahon's affirmance is here:

Order Affirming Discovery Rulings of Magistrate Fox*

* Published online at Internet Law & Regulation

Keywords: copyright 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

RIAA Opposes Defendant's Motion to Sever, Quash, & Vacate in Motown v. Does 1-99 with Memorandum of Law Only, No Jonathan Whitehead Declaration

Plaintiffs have served a memorandum of law opposing John Doe #48's Motion to (a) sever and dismiss as to John Does 2-98 due to the absence of a basis for permissive joinder, (b) vacate the ex parte discovery order on the ground that plaintiffs failed to submit evidence of their prima facie case, and (c) quash the ISP's subpoena on the ground that the complaint fails to state a claim for copyright infringement.

Unlike the opposition papers in Atlantic v. Does 1-25, in which a second declaration by Jonathan Whitehead was submitted which contradicted Mr. Whitehead's original declaration, the plaintiffs this time submitted no declaration or affidavit at all, relying instead solely upon their legal arguments.

Plaintiffs' Memorandum of Law In Opposition to Motion*

* Published online at Internet Law & Regulation

Keywords: copyright 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

Marie Lindor Files Amended Answer; Denies Allegations; Accuses RIAA of Misuse of Copyright; Demands Jury Trial

Marie Lindor, defendant in Brooklyn, New York, in UMG v. Lindor, has filed an amended answer in which she denies any copyright infringement, accuses the plaintiffs of misuse of copyright, and demands a jury trial.

First Amended Answer*

*Published online at Internet Law & Regulation

Keywords: copyright 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

Oregon District Judge denies Recording Industry Motion to Compel Hard drive inspection. Appoints Neutral Expert.

We've received a report that in Atlantic v. Andersen, where the RIAA made a motion to compel complete access to Tanya Andersen's computer to make a "mirror image" of her hard drive, federal judge Donald Ashmanskas declined to allow that, and instead granted Ms. Andersen's request to appoint a neutral expert who would be given a specific list of files and an identified protocol to review her computer.

The RIAA had proposed using "specialized tools and methods" along with "licensed software" and a "special device" to accomplish their review by private forensic expert. The judge did not feel that both parties interests were adequately protected with this process.

The following notation appears on the court record:

"MINUTES of Proceedings: Record of Telephone Status Conference before Judge Ashmanskas - ORDER: (1) Stay of this matter pending conclusion of computer hard drive examination by a neutral expert; (2) Cost of hard drive examination to be born by plaintiffs at this time, with leave to request allocation of costs; (3) Denying plaintiffs' motion[36] to compel as moot; (4) Striking the 4/4/06 telephone status conference. James Ruh, William Patton, Nadia Sarkis present as counsel for plaintiff(s). James Murphy, Lory Lybeck, Brian Hodges present as counsel for defendant. Court Reporter: None. Donald C. Ashmanskas presiding."

Keywords: copyright 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

MPAA Joins RIAA Against Tenise Barker

The Motion Picture Association (MPAA) has joined up with the RIAA in the fight against Tenise Barker, putting in an amicus brief of its own arguing that the RIAA is right, and that merely "making available" is a copyright infringement.

MPAA Amicus brief*

*Published online at Internet Law & Regulation

Keywords: copyright 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

RIAA Argues that Merely Having a Shared Files Folder is in and of itself a copyright infringement

In its briefs responding to the amicus curiae briefs of the Electronic Frontier Foundation, the U.S. Internet Industry Association, and the Computer & Communications Industry Association, the RIAA argues that merely having a shared files folder with copyrighted material in it -- even if the files in it were legally authorized copies, and even if the files were never uploaded and copied by anyone from the shared files folder -- is in and of itself a copyright infringement.

RIAA Brief in Opposition to Amicus Brief of CCIA and USIIA*

RIAA Brief in Opposition to Amicus Brief of Electronic Frontier Foundation*

*Published online at Internet Law & Regulation

Keywords: copyright 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

Mystery Solved. RIAA Says Dismissal as to John Doe #8 was Inadvertent; Failure to send John Doe's lawyers a copy of letter also inadvertent

Well it appears that the mystery has been solved in Atlantic v. Does 1-25.

The RIAA's lawyers wrote to the Court on March 3rd indicating that the earlier dismissal as to John Doe #8 was a mistake, and requested an order vacating the dismissal.

They also say that they thought they had sent a copy of the letter, requesting the order, to us (John Doe's lawyers), and apologized for having failed to do so.

The RIAA's lawyers also stated that they have received no information from the ISP about John Doe #8, and that the stay has not been violated.

So now the case is back on, and we are awaiting a decision from Judge Swain.

Keywords: copyright 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

Mystery Deepens: Dismissal as to John Doe #8 Vacated; Case Reinstated; John Doe's Lawyers Not Told Why

The mystery deepens.

We previously reported that the RIAA had discontinued its case against John Doe #8 in Atlantic v. Does 1-25 (The case in Manhattan federal court before Judge Swain, in which defendant John Doe #8 had moved to vacate the court's ex parte discovery order, affidavits of programmer Zi Mei were presented challenging the Jonathan Whitehead declarations, and Mr. Whitehead later corrected an "error" in his submissions).

Notice of Voluntary Dismissal*

We (Mr. Doe's counsel) were never told why this discontinuance had occurred.

We were concerned, because usually the RIAA discontinues only when the name and address information of "John Doe" has been turned over. But for that to have occurred here, it would probably mean that the ISP and the RIAA would have been violating a court-ordered stay.

We made several inquiries to the RIAA's counsel, as to what was going on, but they did not respond.

Today all of a sudden we received, from the Court, a copy of an order indicating that the earlier dismissal has been vacated -- i.e., the case has been reinstated as to John Doe #8. The proposed order, which the Judge signed, appeared to have been drafted by the RIAA's lawyers.

Order Vacating Voluntary Dismissal*

While it is not unusual for a proposed order to be prepared by the attorneys for a party, and submitted to the Court with an application for the Court to sign the proposed order, it is highly unusual for it to be submitted to the Court without notifiying the other side and without sending copies to the other side of the basis for the application.

We will keep you posted if we get any additional information.

-R.B.

* Published online at Internet Law & Regulation by Pike & Fischer.

Keywords: copyright 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

"RIAA Claims Selling iPod with Copyrighted songs on it is Copyright infringement", Reports FMQB

Came across this report in FMQB:

RIAA Bans The Reselling Of iPods With Preloaded Music

February 10, 2006

Although it may seem like a feasible idea, the Recording Industry Association of America (RIAA) says that reselling an iPod or MP3 player with music already preloaded on it is illegal.

"Selling an iPod preloaded with music is no different than selling a DVD onto which you have burned your entire music collection," the RIAA said in a statement to MTV.com. "Either act is a clear violation of U.S. copyright law. The RIAA is monitoring this means of infringement. In short: seller beware." Many people have been selling their used iPods online with thousands of songs preloaded on them.

Andrew Bridges, a lawyer for eBay that specializes in copyright and trademark law, told MTV.com, "It really depends on individual circumstances. I'm not sure the law is settled. If I'm a college student and I want to supplement my income by buying 100 iPods and selling them at a significant premium, that's probably not going to fly. But if I've had my iPod Shuffle for two years and I'm tired of it and I go out and buy a 60 gig video iPod and want to sell my old Shuffle, but don't want to purge the music first, that's probably legal."

Complete article

Keywords: copyright 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

Mystery : RIAA Discontinues Against John Doe #8 in Atlantic v. Does1-25

A great mystery:

RIAA has discontinued its case against John Doe #8 in Atlantic v. Does 1-25.

Notice of Voluntary Dismissal (Published at Internet Law & Regulation)

That is the case in Manhattan federal court before Judge Swain, in which defendant John Doe #8 had moved to vacate the court's ex parte discovery order, affidavits of programmer Zi Mei were presented challenging the Jonathan Whitehead declarations, and Mr. Whitehead later corrected an "error" in his submissions.

We don't know why this discontinuance has occurred.

Usually RIAA does that only when the name and address information has been turned over. But for that to have occurred here, it would probably mean that the ISP and the RIAA would have been violating a court-ordered stay.

Possibly they discontinued because they felt they would lose the motion and did not want to set a bad precedent.

We will keep you posted if we get any additional information.

-R.B.

Keywords: copyright 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

Motion to Dismiss Made in Texas in Arista v. Greubel

A new dismissal motion has been made, this time in Texas, in Arista Records v. Greubel, in the United States District Court, Northern District of Texas, Fort Worth Division.

In his motion papers Mr. Greubel argues that:

-the RIAA's attempt to recover $750 per song, while its actual damages are only 99 cents per song, is unconstitutional;

-since 2003 the RIAA has been actively engaged in "extortive and predatory litigation tactics" and misused the Courts to "create a veil of fear designed to frighten average consumers into paying thousands of dollars in settlements to avoid prolonged litigation";

-the RIAA's pleadings are "smoke and mirrors";

-the complaint lacks sufficient specificity;

-the "distribution right" upon which the RIAA vaguely relies does not apply to electronic transmissions; and

-even if it did, the mere act of making sound recordings available online does not constitute an actionable infringement.

Motion to Dismiss Complaint (Published at Internet Law & Regulation)

Mr. Greubel is represented by:

Mudd, Charles Lee, Jr.
Law Offices of Charles Lee Mudd Jr.
3344 North Albany Avenue
Chicago, Illinois 60618
773.588.5410
773.588.5440 (facsimile)
cmudd@muddlawoffices.com

Browning, John G.
Browning & Fleishman, P.C.
701 Commerce St., Suite 510
Dallas, Texas 75202
214-752-4130 phone
469-227-9010 fax
Email browninglaw@sbcglobal.net

Keywords: copyright 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

John Doe #48 Moves to Vacate Ex Parte Discovery Order in Motown v. Does 1-99

In Motown v. Does 1-99, pending before Judge Naomi Reice Buchwald in the United States District Court, Southern District of New York, John Doe #48 has moved to vacate the ex parte discovery order obtained by the RIAA.

The judge has stayed the order and any subpoenas which may have been served on Time Warner Cable pursuant to the order, until the motion has been decided. The stay is applicable to all 99 defendants.

John Doe #48 also moved for (a) severence and dismissal of the case as to John Does 2-99, and (b) quashing of the subpoena on the ground that the complaint fails to state a claim for relief under the Copyright Act.

The docket number is 05CV9112(NRB).

RIAA's opposition papers are due March 17th.

Following documents are published online at Internet Law & Regulation:

Notice of motion
Affidavit of Morlan Ty Rogers
Affidavit of Zi Mei
Memorandum of Law

Keywords: copyright 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