Recording Industry vs The People: Wolfpack Stands Up to the RIAA; NC State Students to Fight Back (Corrected article)

Sunday, April 15, 2007

Wolfpack Stands Up to the RIAA; NC State Students to Fight Back (Corrected article)

This is a correction to the story we published. We have been advised by the Office of Student Legal Services that they do not handle federal court cases, and that for the litigation in the "John Doe" case and involving the subpoenas, the students would need to use outside counsel.

Accordingly, I would refer NC State students to my earlier post, Suggestions to College Students.

Following is the story we had found in NC State's student online newspaper, "Technician Online", which we now believe is partially inaccurate:

RIAA files 23 lawsuits against NCSU
Pre-litigation settlements were followed by lawsuits this week for the University's illegal downloaders
Josh Harrell
Issue date: 4/13/07

After the Recording Industry Association of America sent pre-litigation settlements to N.C. State illegal downloaders last month, the company stepped up its game this week.

The RIAA filed 23 music theft lawsuits against anonymous NCSU network users after they refused to take the settlement.

The lawsuits are in the form of "John Doe lawsuits," meaning that the RIAA does not know the names of the people it has filed against.

The users have been identified by their IP addresses, according to an RIAA spokesperson who declined to give her name or be directly quoted.

The same spokesperson said the company will have to wait on a judge to grant the RIAA permission to begin the name-discovery process.

But Pam Gerace, the director of Student Legal Services at the University, is fighting the lawsuits for her student clients. She advises that the students should remain anonymous.

"The RIAA actually said they might have use for the names in the future," Gerace said,

She added that this could prove dangerous for the students, as the RIAA could pursue other legal actions or give the names to record companies.

Complete article

Commentary & discussion:

p2pnet
Editorial in NC State "Technician"
Digg
Wired.com Blog Network
Ars Technica

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

6 comments:

AMD FanBoi said...: I hope they've been forced to file 23 separate suits here, rather than their usual, single big John Doe suit.

And I hope they've had to file it in the proper federal district under a judge other than the one they've been using in New York. It's very reasonable to believe that they have good enough idea where these students are living to know at this time which court they are using. A different judge might make a good amount of difference.

If either of the above two conditions hasn't been met, it should be thrown out for obvious lack of jurisdiction, or misfiling.; April 15, 2007 at 6:37:00 PM EDT
raybeckerman said...: I get the impression that Pam Gerace knows what she's doing and the RIAA's going to have a big problem in Raleigh.

The fighting spirit of Jimmy Valvano lives on.; April 15, 2007 at 8:44:00 PM EDT
Alter_Fritz said...: Hm,
"Pam" and "She" indicates the "director" is a female, probably even a mother.

Somehow the RIAA seems to have hard times with the female gender of our species.
Be it fighting soccermoms (Santangelo, Foster..), knowledable Lawers (Barringer-Thomson) or now a smart Director of Student Legal Services (Gerace)

In biology back in school I learned that the most dangerous animal is the feminine one that is caring for their offspring when this female sees you as a thread to them it will fight you no matter what...

Oviously this genetic programming also works in our species.

I applaud those Females for taken a stand against guys like RIAA-Richard and those greedy old Man in the record labels!; April 15, 2007 at 10:38:00 PM EDT
Alter_Fritz said...: This is Pam; April 15, 2007 at 10:42:00 PM EDT
Alter_Fritz said...: P.S.
but the real interesting part i did only saw after the 3rd reading. Is being a RIAA spokesperson now a bad idea? "[...]according to an RIAA spokesperson who declined to give her name or be directly quoted."
How many "her's" spokespersons that work currently for RIAA do we know, and how many of them are now involved in some political campaign which might be the reason that she does not want her named any longer mentioned in connection with such an awfull entity as the mouthpiece for the labels?

I know only one!
Who could have imagined that 1 or 2 years ago? An employee that is ashamed to be mentioned by name that they work for them!
LOL; April 15, 2007 at 10:59:00 PM EDT
r3m0t said...: Yay, less joinder!; April 16, 2007 at 7:16:00 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