Recording Industry vs The People: New Contested Case in Brooklyn, Capitol v. Sitaras

Friday, March 02, 2007

New Contested Case in Brooklyn, Capitol v. Sitaras

A new contested case has been brought in Brooklyn federal court, Capitol v. Sitaras:

Answer

Mr. Sitaras is represented by Anastasios Pardalis, of Astoria, Queens, New York, and Joseph D. Novahicka of the Bronx, New York. Mr. Pardalis is the author of legal blog Enemy of the State.

* Document published online at Internet Law & Regulation

Commentary & discussion:

Enemy of the State

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

11 comments:

Anonymous said...: I think there is a mistake. Is Mr. Sitaras the author of the legal blog "Enemy of the State" ?; March 2, 2007 at 11:09:00 PM EST
raybeckerman said...: Thanks for catching my error, "anonymous". It is Mr. Pardalis that is the author of "Enemy of the State".; March 2, 2007 at 11:53:00 PM EST
Scott Ferguson said...: Regarding the RIAA's "hit list" of 13 universities published February 28 on their web site, it is interesting to note that none of these institutions are located within the jurisdiction of the 10th Circuit Court of Appeals; the seat of which is Denver, Colorado -- a location shared by the headquarters of Holme Roberts & Owen.

I just bet that the students of Colorado University can freely engage in all sorts of activity that is considered illegal by the RIAA, safe in knowing that they will never be touched by HR&O. The firm can't possibly want a case to be argued in a venue where the firm's fragrant theories would have an airing among their friends and neighbors. You can't go around suing college kids who might be related to someone you know, and then expect to be invited to their Christmas parties, after all.

This is a familiar pattern of conduct to those of us who live in the Northeast. Mafia-controlled neighborhoods tend to be pretty quiet.

(Marilyn Barringer-Thomson must be in the catbird seat now. Oklahoma is in the 10th Circuit, and there is no way in hell that HR&O will ever allow Capitol v. Foster to be heard there.); March 3, 2007 at 1:27:00 AM EST
raybeckerman said...: Thanks, scott. I took you up on your suggestion.; March 3, 2007 at 2:27:00 AM EST
raybeckerman said...: In Capitol v. Foster, the way the RIAA is acting makes me think that they've lost their minds. Instead of cutting their losses they're going to turn this into a monumental disaster, digging their hole deeper and deeper, frivolous moving for "reconsideration" and "clarification", seeking discovery where none is needed, and stonewalling discovery on their end. They're going to wind up paying not one but 2 sets of attorneys fees for all this nonsense.; March 3, 2007 at 2:30:00 AM EST
Scott Ferguson said...: Ray, generally, what is a lawyer's ethical obligation when a client -- a big client with lots of money and staff counsel of their own -- demands that you do things of marginal ethics and questionable strategy, insofar as the strategy can be understood? Where should a good lawyer draw the line?

Is it two different things to be an ethical lawyer and to be a good lawyer?

In my opinion (and for what little that's worth), HR&0 would, as an institution, want to cast its litigation net as far away from the home office as possible. Colorado is not a comfortable place for any law firm to be suing children and handicapped people; and especially not for a firm based in Colorado.

It is obvious from the RIAA's web site that they are engaged in a campaign to influence public policy -- in other words, a political campaign -- and are using HR&O as an instrument to pursue these political ends. Using the stage that the RIAA has set, then, it seems imperative that the political fight be brought back to Colorado. The EFF and others should be looking for ways outside of the court system to do this.

Another hypothetical: Would an attorney with a passive-aggressive attitude and a belligerent client look for a slick way to lose a few key cases just to get them off his or her back? Pushing Capitol v. Foster up into the 10th Circuit could be a way to do this.

The politics and strategy behind the RIAA's campaign interests me even more than the individual legal battles do. This is a story that the blogosphere is ill-equipped to tell, since bloggers with real knowledge of the issues are also advocates for a particular side. Nobody with any authority is giving the top-down view. I hunger for that.

An aside: I don't really MEAN to be a sycophant! I'm just trying to follow blog etiquette. One should always be nice to the blogger who allows comments on his blog. If I need to rip into you, I'll do it on my own blog. :); March 3, 2007 at 11:33:00 AM EST
raybeckerman said...: scott

1. You cannot be a good lawyer without also being an ethical lawyer.

2. You have to draw a line in the sand, and do what is right, even when your client wants you... even instructs you... to do otherwise.

3. I agree with you that the HRO lawyers would not want their family, friends, and neighbors to know that they make a living ganging up on children, disabled people, the elderly, and, in general, anyone who's helpless.

4. No, unethical lawyers like that don't want to get the client off their back; they are all about the money.

5. You don't consider me impartial?
Sniff... sniff... You're right. I'm biased. I've always been prejudiced against bullies.

6. You can rip into me any time, even on my own blog, as long as you have a basis for it.; March 3, 2007 at 12:01:00 PM EST
raybeckerman said...: scott

do you want me to email you back your comment so you can edit it to take out the personal stuff

if so send me your email address

i'm at musiclitigation@earthlink.net; March 4, 2007 at 11:49:00 AM EST
raybeckerman said...: you're right scott, they probably don't want their friends and neighbors knowing how they make a living....

dreddsnik, you're better than i if you can discern a 'strategy' among these people....; March 5, 2007 at 10:58:00 PM EST
r3m0t said...: "Defendant denies allegations [numbers], admits allegations [numbers]" - how can I find the original allegations?; March 7, 2007 at 4:19:00 PM EST
Alter_Fritz said...: r3m0t
if oyu can't find the complaint in a specific case also on record, just use one of the complaint copies form ANY other case.
Its the boilerplate writing in all of them :-(; March 10, 2007 at 7:46:00 AM EST

Post a Comment

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