Recording Industry vs The People: Battle Raging in Tucson, Arizona, in Loud v. Sanchez; RIAA Allowed to Amend Complaint to Add Daughter As Defendant

Thursday, April 12, 2007

Battle Raging in Tucson, Arizona, in Loud v. Sanchez; RIAA Allowed to Amend Complaint to Add Daughter As Defendant

We have just learned of a battle that has been raging in Tucson, Arizona, in Loud v. Sanchez.

The RIAA sued a middle aged man who has never engaged in p2p file sharing. During the course of the litigation they came to believe that his daughter, rather than he, had been engaged in filesharing.

They thereafter brought on a motion, last November, to amend their complaint -- not to drop the father as a defendant, but to add the daughter.

Thereafter, on April 10th of this year, they sought to withdraw their motion and drop the case entirely against the father, without prejudice, indicating an intention to bring a separate suit against the daughter.

Unbeknownst to them, however, the day before the Court had granted their motion for leave to amend to add the daughter.

Defendants thereafter filed an answer and counterclaims to the amended complaint, counterclaiming for (a) a declaratory judgment of non-infringement and (b) money damages for prima facie tort under Arizona law.

Plaintiffs' Motion to Amend Complaint*
Order signed April 9, 2007, and entered April 11, 2007, Granting Plaintiffs' Motion to Amend Complaint*
Plaintiffs' Notice Withdrawing Motion to Amend Complaint*
Defendants' Answer and Counterclaims*

Defendants are represented by Edwin Eloy Aguilar of the Karp Heurlin Weiss law firm in Tucson, Arizona.

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet

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

4 comments:

AMD FanBoi said...: Is this a HaHa moment yet?; April 12, 2007 at 3:23:00 PM EDT
AMD FanBoi said...: Regarding the unconstitutional excessive statutory damages, someone should point out that Plaintiffs continue to claim such damages despite knowing, or should have known given how many times it's been pointed out to them now, that such damages have been ruled against by SCOTUS. Isn't this a fraud on the Court itself to knowingly make such claims? I thought lawyers certified when bringing a case that their claims were well-grounded. They could, in theory (IANAL) lose on these grounds alone, which would be a significant setback for them.

And why didn't this guy know at the John Doe stage that he was being suit? Given that he had councel at the pre-litigation settlement phase, he must have been aware of a looming problem. If he wasn't notified by his ISP about their turning over personal information about him based on dubious legal theories in the initial phase of the RIAA assault, does he have a case against his ISP? And if he doesn't use a computer normally, an e-mail from said ISP hardly qualifies as proper notice.

Apparently the court allows saying that my favorite color is pink on one's MySpace page as sufficient to charge someone using the name npink with a civil court case. Leads me to wonder, if whomever this was that was detected by Media Sentry had been using a name of random letters and numbers, would they have tried to sue them at all? They seem to want to use the KaZaA names they detect as a way to tie the alleged infringing activity to specific people (e.g. jrlindor).

When reading the November motion to amend and add the daughter, the judge acknowledges that the father is still in the case. Seems to me that keeping a known non-party (there is no evidence at the moment that the father did anything except pay for an Internet account) really got the RIAA in trouble in another case. But I guess they don't learn.; April 12, 2007 at 3:45:00 PM EDT
Todd Knarr said...: Well, the RIAA amended the case to add the daughter without dropping the father back last fall, before they got nailed on it. They tried withdrawing it only just now, just after they'd gotten nailed. This looks to me like the RIAA, having discovered that they won't be allowed to get away with that, trying to run away before anyone noticed. Except they didn't run quite fast enough.; April 12, 2007 at 6:05:00 PM EDT
Barlow said...: WOW, I think they (RIAA) have stayed to long at the fair on this one.

I don't know what the Tort damages could be but since they fight to the death over even partial attorney fees they certainly do not want to go to a jury on this one.

If a court ever gets to rule on the Statutory damages issue stated in the counterclaims the game will be over for them.; April 13, 2007 at 10:57:00 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