Recording Industry vs The People: Answer, Counterclaims, and Discovery Notices Served in Elektra v. Torres

Friday, April 27, 2007

Answer, Counterclaims, and Discovery Notices Served in Elektra v. Torres

The defendant's answer, counterclaim, and discovery notices have been served in a new contested case in Brooklyn, Elektra v. Torres.

Answer and Counterclaims*
Answer and Counterclaims, Exhibit A (Amicus Brief filed by ACLU, Public Citizen, EFF, AALL, and ACLU Foundation of Oklahoma in Capitol v. Foster)*
Defendant's Initial Disclosures*
Defendant's First Set of Interrogatories to Plaintiffs*
Defendant's First Request for Production of Documents and Things*
Defendant's Notice to Take Deposition of Elektra Entertainment*

* 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:

AMD FanBoi said...: 28. Plaintiffs’ practice of commencing actions against people, solely because they have paid for an internet access account, in order to coerce a settlement, is akin to extortion.

One might add: or to force innocent defendants to perform plaintiffs investigative work in an attempt to identify actual infringers, for no fee or compensation, while incurring unrebated legal charges.

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4. Define the term “online media distribution system” and set forth any legal dictionary, statute, or other source, in any, for said definition.

Hooray! About time someone has demanded that they justify the use of their totally invented, prejudicial term for what everyone else in the world knows as Peer-to-peer (P2P) Filesharing.

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While you're asking them to disclose everything else, you might also include asking them to disclose a full list of exactly what forensic evidence on a computer hard drive would be considered proof of the allegations make in the initial complaint. Include any items and/or indications that would be utilized to claim that a hard drive was either illegally reloaded with an operating system after the fact, did or did not use a wireless network, or anything else that would lead you to claim that you were given the incorrect hard drive for forensic examination.

It would be nice to know how to then limit their expert to only looking for these exact items, and claim anything else they "fish up" and attempt to enter were not properly disclosed. Note that such a list as this will likely take a very long time to draw up properly, and might be offered to the technical community at large afterwards for opinions on the validity of the data they intend to use.

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By the way, if they actually provide a list of software used by Media Sentry, you might well find out that MS used such software, or hacked or reverse-engineered versions of said software in violation of the copyright and/or User License included with such software. Even P2P software has terms of agreement with it, sometimes including not using it to infringe copyrights -- which would be exactly what MS was doing the moment the downloaded anything. But if they're used the programs improperly, that would be an interesting fact to point out.

And you can always ask for the Media Sentry/RIAA contract once again. What they admit they CAN'T detect is worth knowing, if they are then claiming that they detected EXACTLY THAT in regards to your client. After all, that shows weaknesses and holes in their investigative methods, which I'd expect any defense lawyer to demand to know.; April 27, 2007 at 6:08:00 PM EDT
Joel said...: LOL.

Brilliant. Well, let's not just answer this one let's just leap into discovery with some fun disclosures, interrogatories, requests for production and oh yes, why not a deposition.; April 27, 2007 at 8:05:00 PM EDT
Ryan said...: I would like to commend Ty on again showing adaptibility. Just last week it was mentioned that the defence in one of these cases should ask for the raw data and behold, the request has been delivered.

"4. All documents concerning any investigatoin of plainitiffs' claim against defendant, including, but not limited to, contacts, memos, emails, digital files, printouts, reports, screen shots, any notes taken whether on paper or electronicallly, any documents made by MediaSentry, SafeNet, Inc. or any orther monitoring or data collection used in connection with this matter, electronically stored log files and data, full packet log in its digital form, screenshots, data files or settings captured from the defendant's alleged computer, and any and all other documents whatsoever."
*bold added; April 28, 2007 at 12:13:00 AM EDT
Interested Observer said...: IANAL but
1-Has anyone considered that the record companies may be using a third party agent to distribute songs to radio stations and such agents may be using P2P to distribute their songs. By restricting your requests to naming "employees" allows them to quibble by saying that their employees do not use P2P. "Plausible Deniability".

2-Are any of the plaintiffs affiliated with the plaintiffs in Texas Court Order denying the joining of "Does" in the initial ex parte subpoena. If so, and the initial subpoena in this case, if it contains multiple "Does" and the defendant is not the first one, could be said to be obtained in violation of a court order and thus "tainted" and inadmissable.

Any comments?; April 28, 2007 at 7:36:00 AM EDT
H said...: Everybody should fight the settlement offer.

The RIAA can handle 700 settlements a month, but if each one went to court, they would not be able to deal with all of the cases.

If each case lasts 3 years, they will easily end up with 25,000 cases in court at once. The legal fees to fight these cases would be over a billion dollars (at $40,000 a case).; April 29, 2007 at 2:55:00 PM EDT
recordjackethistorian said...: Very, Very nice list of documents, documentation, descriptions and depositions! That should keep them scrambling to adhere to the letter of your requests. Log-files on any computer system sometimes seem to self-replicate, of course they don't. Computers are very literal machines. They log everything, most large systems log every single event which takes place. Even A single mouse click is an event which can be logged. If printed out this can be a substantial amount of paper, hopefully you can obtain them in digital format, so you can use a computer language like PERL (Practical Extraction and Report Language) to parse and analyze the data.

Any system administrator worth their salt, keeps logs. In the event of a malfunction or problem log-files are really the only way they have of know what exactly went wrong, even those are sometimes only hints. You may know that your computer program crashed at 8:57:05 AM but the event that was fatal didn't' occur at that time... it occurred sometime before that .. so you still pick through the logs to find what the fatal error was. Fun huh?

If they comply with these requests we will soon know much more about Media Sentry and the hardware it runs on .. as well as its real capabilities.

cheers,
David
a.k.a. Record Jacket Historian; April 30, 2007 at 12:22:00 AM EDT
Sardon said...: I'm impressed by the the range of discovery requested by Ty but I'm surprised that he didn't ask for all documents to be provided in their original un-altered form. Generally, I would think that in discovery you want to give all of your documents in paper form but you want the opposition to give you all of their documents in their original electronic form, with all of their original creation and modification dates and all of their meta data intact (like "author," and "track changes.")

I also hope that Ty will demand un-redacted IP logs that show Media Sentry's IP address. You can't properly investigate their claims unless they provide the IP address they claim to have connected from. It's like MS submitting a photo they say is proof of infringement but refusing to say even what country it was taken in. Or saying that a phone call by them to your client is proof of infringement but refusing to say what city, state or country they made that call from. Redacting their IP is highly predudical.; April 30, 2007 at 2:42:00 PM EDT
Igor said...: I agree with Sardon.

One of the reasons you want the digital copies is so you can detect mistakes like: http://www.pittsburghlive.com/x/tribunereview/news/westmoreland/s_501066.html; April 30, 2007 at 4:20:00 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