Recording Industry vs The People: Magistrate Grants Motion for Alternate Manner of Service on Ms. Lindor's Nephew

Sunday, May 27, 2007

Magistrate Grants Motion for Alternate Manner of Service on Ms. Lindor's Nephew

In UMG v. Lindor, Magistrate Levy has granted the RIAA's motion for leave to serve a subpoena on Ms. Lindor's nephew by an alternative means of service, other than personal service:

Order entered May 25, 2007, Levy, M.J., Granting Leave to Serve Subpoena with Alternate Means of Service*

* Document published online at Internet Law & Regulation

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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

7 comments:

raybeckerman said...: Dear markbnj:

I'm sorry but I felt I had to delete your comment, since the RIAA frequently refers the judge to my blog.

If you want to draft a more carefully worded criticism of Judge Levy's ruling, giving the actual reasons for your disagreement with it, that would be fine.; May 28, 2007 at 10:18:00 AM EDT
jupiter said...: This comment refers to articles posted here on April 12 and 18 regarding RIAA's efforts to direct all cases to Judge Magistrate Levy.

The local rules for this court are posted at http://www.nyed.uscourts.gov/localrules.pdf

Rule 72.2 states in part, "In any courthouse in this District in which there is more than one magistrate judge such assignment shall be at random on a rotating basis."

There appear to be 16 magistrates in this court. So why is Levy catching all the RIAA cases?; May 29, 2007 at 10:47:00 PM EDT
Unknown said...: Thanks as usual for posting/linking to the actual filings. I enjoy reading them in their entirety.

If PACER doesn't have a complaint/filing/etc available for PDF download, is there a way for the public to request a printed/faxed copy of it? Who would you contact and is there a price per page fee? Payable by credit card, assuming?

Thanks; May 30, 2007 at 12:15:00 PM EDT
raybeckerman said...: Dear jupiter,

All the cases in this district are being referred to Judge Trager as the District Judge and Judge Levy as the Magistrate Judge because the RIAA designates each new case as "related" to its older cases against unrelated defendants.

If one wishes to challenge the "related case" designation, one must do so to Judge Trager. We have done so in Maverick v. Chowdhury and in Elektra v. Torres.; May 30, 2007 at 1:12:00 PM EDT
Unknown said...: Ray,

I just thought of another reason why you should request complete packet logs from Media Sentry for any given file.

If an agent of the RIAA such as Median Sentry gives you copyrighted works then you aren't violating DMCA because the copyright holder is freely giving you the files...right?

So a complete packet log may show that they didn't block uploading of the copyrighted files they were downloading and in fact were uploading themselves. If so, it may show that they were freely giving out the files and thus invalidating their claim. Moreover, this would make their entire packet log throughout their sting operation relevant since they may have "shared" a given song they are suing for at an earlier date. Also, they may have even uploaded to an IP address they are suing much earlier on in their operation (making the logs relevant).

They may even "claim" they weren't uploading or that uploading is turned off but then again the defendant is "claiming" that s/he is not liable either...this is why we have a trial and why we have discovery in the trial...

...I would think that if they no longer have the logs this would be similar to a defendant wiping their hard drive (since the RIAA knew these could be used in a potential law suit) and thus them erasing exculpating evidence and thus possibly grounds for dismissal?

Worts case scenario they give several hard drives worth of packet logs for us to sift through.; May 30, 2007 at 1:49:00 PM EDT
Sanji Himura said...: You could also say that the only relation to these RIAA cases in that district is the fact that the RIAA are the plantiffs.

They pull a similar stunt in the "John Doe" phase of the litigation procedure, and the well known Austin Severence Order has declared that practice illegal under the Federal Rules of Civil Procedure. The only reason I think why the RIAA doesn't ask for a joinder is because they know that the practice would not only be looked under a microscope by any judge(including Levy and Tager), but they would throw out any case that they bring, including the "John Doe" suits with prejudice.

I could, and probably be, dead wrong on this, but that is the way I see things.; May 30, 2007 at 2:03:00 PM EDT
Igor said...: Sorry, that last post under "iggy" was me...having two emails gets confusing sometimes :)...

It was nice to meet you at Berckman (just now), Ray :); June 1, 2007 at 1:57:00 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