Wednesday, June 27, 2007

RIAA Opposes Boston University Student's Motion to Vacate and to Quash

In the Boston University ex parte "John Doe" case, Arista v. Does 1-21, where a student moved to vacate the ex parte order granting discovery, and to quash the subpoena issued under it, the RIAA has filed its opposition to the motion.

Memorandum of Law in Oppposition*

* 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


AMD FanBoi said...

Sever first, then quash. Got that?

Also note to the RIAA that "many courts" is not at all the same as all courts. Perhaps, in the spirit of full disclosure, someone needs to point out the courts that haven't yet agreed that this is sufficient at this stage.

Actually, all this confusion that the Plaintiffs are complaining about truly shows the problem in joining such unrelated, except by likely geography, so many otherwise unrelated Does. All we need next is for a Jane Doe to claim sexism in being referred to by the John Doe moniker. In the meantime, it has just amply been demonstrated in a way far better than mere arguments on paper ever could, that this whole idea of filing a joined suit against unrelated Does is a cause of massive confusion the moment somebody can actually get in to argue for the Defendants at the ex parte stage. That's probably why the RIAA tries to keep it ex parte.

Hey, I've got an idea!!! The RIAA dismisses their joined suit, files separate suits, and sees which lawyers show up to defend each one. Then there would be no confusion at all!!! Genius!!!

And as far as the RIAA contention that the Plaintiffs have already gathered substantial evidence of Defendant's illegal conduct, isn't there another case out there, very recently in the news, where long after this point the judge told the Plaintiffs to show their massive amount of evidence and proceed immediately to trial, or dismiss with prejudice? And what did the RIAA do at a point much further along than this? Oh yeah, they folded and ran, and are now frantically trying to avoid actually paying for their mistakes.

Footnote 3: So the RIAA is now down to suing Massive Infringers who are only sharing 100 songs. Fascinating!

And once again that pesky "continues to use an online media distribution system" argument pops up. That has got to be the hardest point of all to prove. Especially after the Defendant has received an extortion threat and hired a lawyer. Chances are if the person ever did file share, they're not doing it now. Bald Lie on the RIAA's part. Good thing for them I'm not a judge in all of this. I might ask them to actually explain these outrageous contentions before allowing them to continue.

As for Plaintiff's conclusion were they state they've made a prima facie showing of copyright infringement against each of the Doe defendants, were I defending any of them I'd next attack the overall quality of their "evidence", which has been shown to be sadly lacking in a number of cases now. And then point out why should any person be required to go through a very costly judicial anal examination on the basis of such clearly shoddy evidence collection, along with the obvious lack of being able to identify any person from an IP address alone. It is, after all, the IP address that they've identified (maybe), and quite a leap to attach that to a specified person, as has well been demonstrated by now. Also, college kids do stupid things, like hack each other's Internet access just for the fun of doing it.

Wouldn't hurt to drag MediaSentry and their secret contract in at this point of the proceedings, since it seems that this contract indicates a number of the deficiencies in their investigative methods used. Deficiencies well-known to the RIAA before they started trying to bully yet another group of kids. But they won't want to talk about that, I'm sure.

Oh, and that part at the end where the RIAA says: "like hundreds of other courts across the country that relied on precisely the same kind of evidence in parallel cases". Hundreds??? Really??? I thought only a handful of judges to far had heard these cases. Maybe a few dozen. Ray, have you been holding out on us about all these other hundreds of courts?

Iggy said...

I think the defendant is going about this all wrong. Instead of filing to vacate or to sever, they should first file to join this John Doe law suit with all the other the RIAA filed (and yet to dismiss) across the country. This will force the RIAA to argue against it (or the Judge to rule against it) and then the defendant can turn around and file to sever based on argument provided by the RIAA :). (Though I guess there are jurisdictional issues that I don't know that could prevent this ploy).

Sanji Himura said...

I'd say the only reason why the RIAA is fighting this off tooth and nail is the sole reason that they want to give this Doe extra special attention when he is identified, either by Boston University or when he goes public.

I'd like to draw your attention to a few passages in the RIAA's Declaration of Law in Opposition to Quash to get my point:

pg 1-2: As an initial matter, Defendant’s counsel, Mr. Sayeg, has misrepresented the scope of his representation to this Court. Mr. Sayeg signed the Motion to Quash (“Motion”) [Docket No. 10]
and the accompanying “Memorandum of Law of Boston University In Support of Its Motion to Quash Subpoena” (“Mem. Supp. Mot.) [Docket No. 11] on behalf of “John Does 1-21,” despite the fact that he does not represent each of the Doe defendants in this matter.(1) Mr. Sayeg has continuously refused to comply with repeated requests from Plaintiffs’ counsel to identify which Doe defendant he represents and to file a clarifying statement with this Court. See June 15, 2007
Letter from M. Rothman to R. Sayeg; June 21, 2007; Letter from R. Sayeg to J. Bauer, attached
collectively hereto as Exhibit A. Mr. Sayeg has also refused to identify his client to the University, despite the ease with which the University can determine the Doe number for Mr. Sayeg’s client. See June 25, 2007 Letter from C. Talley to J. Bauer, attached hereto as Exhibit B. Mr. Sayeg’s continued refusal to identify his client and clarify the scope of his representation
raises a number of issues and has caused unnecessary delay and confusion in this case.

Footnote 1(found on page 2), states that It is clear from Plaintiffs’ counsel’s communications with Mr. Sayeg and with other attorneys who are representing different Doe defendants in this case that Mr. Sayeg does not represent each of the Doe defendants.

Now just what is this lawyer up to? If Ms. Lindor, Ms. Santalego, Ms. Foster or Ms. Andersen(in particular) has taught us anything, it is that if they are wrong about something, then the more agressive they are going to be to get you to settle.

First, Mr. Sayeg may have moved to quash the subpoena on behalf of a number of Doe defendants who may not have consented to the Motion. Those defendants who have contacted
Plaintiffs’ counsel to discuss settlement, either directly or through counsel, may wish to take
advantage of settlement terms that are more favorable this early in the litigation than may be available after the motion to quash has been litigated and this case progresses. By moving to quash the subpoena purportedly on behalf of those defendants without their consent, Mr. Sayeg is taking that decision out of their hands and possibly harming their best interests.

While the fact that there may be defendants in this particular case that are willing to settle is true, but isn't the point of a quash motion to stop a subpoena from going through? Besides, isn't the point of a civil trial to be confronted by witnesses? Seems to me that what the RIAA has been doing all along is just suing random Does just to get their names. This Doe was smart enough to make them put their money where their mouth is in time.

Second, Mr. Sayeg’s refusal to identify which Doe defendant(s) he represents has engendered confusion and uncertainty with respect to all of the Doe defendants in this case. That confusion and uncertainty is preventing Plaintiffs’ counsel from engaging in discussions with several different Doe defendants who have contacted them to discuss various issues, including settlement. Plaintiffs’ counsel are understandably concerned about communicating directly with any defendant who is represented by counsel. Mr. Sayeg’s representation to the Court and to Plaintiffs’ counsel that he represents all of the Doe defendants, which Plaintiffs’ counsel knows is incorrect, makes it impossible for Plaintiffs’ counsel to determine with certainty whether defendants who have contacted Plaintiffs’ counsel are represented by counsel. Until Mr. Sayeg clarifies which of the Doe defendants he does not represent, he is interfering with the ability of those defendants to enter into settlement negotiations.

This is simply not true. Correct me if I'm wrong Ray, but does a motion to quash prevent any of the other Doe defendants to hold settlement negotiations with the plaintiffs? Is this motion to quash simply is trying to prevent Mr. Doe from being identified by Boston University? I thought so.

Finally, because it cannot determine which Doe defendant is objecting to the subpoena, the University is refusing to provide any response to the subpoena until Mr. Sayeg’s Motion is resolved. See Letter from C. Talley to Clerk of Courts [Docket No. 13].

[sarcasm]That's the point of the motion, Am I right?[/sarcasm]

Iggy said...

I don't know how a judge can read the RIAA response and ask "And I shouldn't sever these because?" based on what the fact that the RIAA IS treating them as separate cases... I think they are digging their own grave with this one (hence my semi-serious joinder suggestion earlier).

AMD FanBoi said...

Iggy brings up an interesting point. When you're one joined defendant in a joined case, do the other defendants have to agree with your defense? If you want to quash, do they have to want to quash as well?

That's the problem with this (illegally, immorally) joined case. Separate defendants all going different ways with different lawyers, pursuing different settlement or fight options.

If anything, I'd expect the judge to look at this sudden mess (it wasn't a mess as long as only the RIAA was doing the talking), and get the RIAA to justify to him why this case is joined. After they get past the judicial economy argument, the judge himself should sever all the Does 2 and higher, hopefully telling the RIAA in the process not to do this again.

AMD FanBoi said...

P.S. Doesn't the attorney for the defendant have to quash the entire subpoena on the basis of that there's only ONE CASE here, and only ONE SUBPOENA? He doesn't have the choice of trying to quash only a fractional part of one subpoena to the University, because subpoena's are indivisible?

Mike said...

Oh what I wouldn't give to see the judge say "Does 2+ are severed immeditately. RIAA, you violated a court order from Texas (1994, I believe) in joining them, so you're on the hook for sanctions in this case."

Alter_Fritz said...

mike refers to a 2004 decision;

Typically, the RIAA joins a number of "John Does" in a single suit, in order to save itself money, even though under the Federal Rules such joinder is clearly improper. See, e.g. In re Cases Filed by Recording Companies, W.D. Texas, Austin Division (2004) In fact, the foregoing case specifically enjoined the RIAA to cease and desist from continuing its practice of joinder, an injunction which the RIAA has simply ignored.

Lunarsight said...

I think the RIAA just needs to go away, as well as the underlying record labels that comprises it. The best way to ensure this happens is to just stop purchasing their wares. When you consider there are plenty of great musicians that are offering their albums online for nothing (try, it really makes the larger record labels look like a relic from some foregone era.

Sanji Himura said...

Why the judge simply did not put the RIAA on sanctions as soon as he saw the motion, I'll never know.