Recording Industry vs The People: RIAA Goes Into Court "Ex Parte" in Denver, Colorado, Tries to Get Ruling that it Doesn't Need Court Order to Get Subscriber Info from ISP's

Wednesday, April 25, 2007

RIAA Goes Into Court "Ex Parte" in Denver, Colorado, Tries to Get Ruling that it Doesn't Need Court Order to Get Subscriber Info from ISP's

We have just learned that the RIAA made an ex parte application to a district court in Denver, Colorado -- where the RIAA's lawyers are located -- asking the Judge to rule that no court order is needed in order for an ISP to turn over confidential subscriber information to the RIAA.

An ex parte application is an application made where no other parties are given notice that the application is being made.

The magistrate judge declined to rule on that issue, but issued the ex parte order the RIAA was asking for.

The name of the case is Arista v. Does 1-9, Civil Action No. 07-cv-00628-EWN-MEH, District Court of Colorado.

Order dated April 4, 2007*

* Document published online at Internet Law & Regulation

Commentary & discussion:

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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

10 comments:

Scott said...: Denver is Qwest's home also. I hope they have the business sense to put up a vigorous fight. After all, consumers in all of their markets have other options for phone and internet service.; April 25, 2007 at 12:57:00 PM EDT
Alter_Fritz said...: OK we know already that NewYork is not Denver ;-)

but is law in Denver also not the same as law in Texas where judges said this rounding up of unrelated doe defendants is against the FRCP!

I thought the F in FRCP stands for Federal?

Incompetence of this denver judge?
Plays he golf with "RIAA-Richard"?

Or is this rounding up more then 1 person all totally legitimate under your laws and I just again confuse something?; April 25, 2007 at 1:29:00 PM EDT
Jadeic said...: My gast is flabbered! What cunning stunts the RIAA have...

On a point of ignorance - is it possible that there is a time line in the Federal Rules of Civil Procedure by which, if the RIAA allow a judicious period to pass before serving this order on Qwest, it may be unable to 'move to quash the subpoena if it deems
appropriate' as it surely must?; April 25, 2007 at 2:37:00 PM EDT
Igor said...: "Any information disclosed to Plaintiffs in response to the subpoena may be
used by the Plaintiffs solely for the purpose of protecting Plaintiffs’ rights
under the Copyright Act, as set forth in the Complaint"

Does the Settlement Support Center qualify as protecting plaintiff's rights? Can't one make an argument that by not filing the law suit and going straight to the center they are violating that since the center does nothing to protect their rights but only to extort money.

I may not have articulated this clearly, but for the lawyers out there (and Ray) is there something to what I'm saying?; April 25, 2007 at 3:00:00 PM EDT
AMD FanBoi said...: Looks like joined Does again to me. Can't someone hit this judge with a cluestick about improper joinder that already has precedent in another court?; April 25, 2007 at 3:39:00 PM EDT
StephenH said...: I wish they would have followed the orders of Priority Records v Does 1-7, which delays the ISP supeona of info 21 days and allow the persons to have a chance to quash if they want to contest.; April 25, 2007 at 4:23:00 PM EDT
Scott said...: amd_fanboi: I remember that too, was info on the improper joinder precedent posted in this blog earlier? A link to it might be helpful to Qwest's lawyers. If I have some time to screw around at work today I'll search for it and post a link, assuming Ray will let me. The RIAA has to stop blowing off court orders.; April 26, 2007 at 8:16:00 AM EDT
raybeckerman said...: Fonovisa v. Does 1-41 (Austin, TX); April 26, 2007 at 9:03:00 AM EDT
raybeckerman said...: Qwest wasn't even served with the papers. It was an ex parte application.

I do hope they make a motion to vacate the ex parte order, but know nothing about Qwest's leadership.

For all I know it might be affiliated with one of the RIAA cartel members.; April 27, 2007 at 6:24:00 AM EDT
Scott said...: Qwest allies with the RIAA? Anything is possible, but I think it would be stupid for Qwest to be carrying the RIAA's water. They're not the most robust of the old "baby Bells"; and there are competitors in almost every market for every service they offer. Subjecting their subscribers to gratuitous abuse by providing the RIAA with tenuous "evidence" won't go over well in the Rocky Mountain region, whose residents have a mean anti-authoritarian streak. The corrosive ripple effect on its corporate image would be big enough so that Qwest, if it were prudent, would have to weigh the negative impact of passive cooperation.

But that's a big "if." Judging from their analyst ratings, Wall Street does not have a high opinion of Qwest management.; April 27, 2007 at 8:27:00 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