Recording Industry vs. The People

Thursday, July 19, 2007

Default Judgment against Michelle Santangelo vacated; RIAA seeks $513 in attorneys' fees

According to court papers filed by the RIAA in Elektra v. Santangelo II, the default judgment it had taken against Michelle Santangelo was vacated by the Court at the July 13th status conference. Recording Industry vs. The People has not yet seen an order embodying that ruling.

In the court papers, the RIAA seeks to be reimbursed for $513 in attorneys fees incurred in (a) procuring the default judgment, and (b) preparing for post-judgment enforcement.

The papers indicate that Richard L. Gabriel's hourly billing rate is $375.

Update:

Subsequent to the publication of this post, we obtained a copy of the Court's docket sheet entry recording the Court's vacatur of the default judgment.

July 18, 2007, Declaration of Richard L. Gabriel*
Minute entry for July 13, 2007, conference, vacating default judgment*

*Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet (July 13th story on vacatur of judgment)
p2pnet (July 19th story on Richard L. Gabriel attorneys fees)
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Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

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posted by Ray Beckerman @ 7/19/2007 08:51:00 AM

7 Comments:

It seems Mr. Gabriel commands quite a bit more than was ruled fair for Ms. Barringer-Thomson in Capitol v. Foster. It seems quite disingenuous to argue about someone's rates when you yourself charge over double.

By Marc W. Bourgeois, at July 19, 2007 9:19:00 AM EDT

with all due respect but I'm wondering why a guy like "RIAA-Richard". that made numerous errors in previous filings and in other cases, a guy that needed to ask numerous times for extension of deadlines to answer stuff because he claimed he was so buisy to prepare the stuff and who is the Führeranwalt (lead counsel translation?) for the Labels of which Judge West said that those Counsels claimed stuff that was "not true";
why such a guy should be worth $375 per hour while counsel on the opposite side would only be worth $175 in case of Ms. Foster?!

And a simple paralegal for the "boilerplates"-using label counsel claims to be worth $150?
They must be either kidding or being very smart if they managed to get such fees from their clients the labels!

Santangelos shouldn't have to be liable for such IMO disapropriate fee demands.

(Serious question)
Isn't it the personal problem of the plaintiffs that they want to state under oath if defendant is a member of active military service? Why should defaulting defendant be responsible for costs plaintiffs have to ask some databases when plaintiffs for example simply could ask defendant itself if they want to state something under oath? (Serious question end)
It isn't that plaintiffs give such a damn about stating something under oath or penalty of perjury anyway, as it was found before that what they state in their papers is not true even if they do so under one of the beforementioned conditions!

By Alter_Fritz, at July 19, 2007 10:19:00 AM EDT

How common is a motion like this? If I were defense counsel could I oppose the motion on grounds that I would be seeking fees and costs following the trial, settlement, or more likely, outright dismissal by the plaintiff when they realize they don't have a case?

By Schwammo, at July 20, 2007 10:36:00 AM EDT

Schwammo said...

How common is a motion like this?

Like everything else the RIAA lawyers do, it's quite uncommon.

By Ray Beckerman, at July 20, 2007 11:52:00 AM EDT

Marc W. Bourgeois said...

It seems Mr. Gabriel commands quite a bit more than was ruled fair for Ms. Barringer-Thomson in Capitol v. Foster. It seems quite disingenuous to argue about someone's rates when you yourself charge over double.

The RIAA's lawyers disingenuous? How could you possibly think that?

By Ray Beckerman, at July 21, 2007 12:05:00 AM EDT

Alter_Fritz, I missed you. What were you, on vacation? If so, please check with me first next time. We can't just have you leave us in the lurch like that.

By Ray Beckerman, at July 21, 2007 12:06:00 AM EDT

It's a requirement, in getting a default judgment, to investigate and get an affidavit that the defendant is not in military service.

The real question is why did the RIAA get a default judgment in the first place, when Michelle was represented by counsel, and her counsel had entered into a discovery schedule on her behalf???

By Ray Beckerman, at July 21, 2007 12:08:00 AM EDT

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"Such a combination may expand the potential statutory damages so far beyond the actual damages suffered that the statutory damages come to resemble punitive damages.....[S]uch a distortion could create a potentially enormous aggregate recovery for plaintiffs, and thus an in terrorem effect on defendants, which may induce unfair settlements. And it may be that in a sufficiently serious case the due process clause might be invoked... to nullify that effect and reduce the aggregate damage award." US Court App., 2d Cir., June 2, 2003, Parker v. Time Warner, 331 F.3d 13

"[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

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ABOUT THE AUTHOR

"Recording Industry vs. The People"
By Ray Beckerman

-I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits brought by four large record companies, and other areas of concern to digital online copyright law.
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"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

"If the owner of the shared folder simply provides a member of the public with access to the work and the means to make an unauthorized copy, the owner is not liable as a primary infringer of the distribution right, but rather is potentially liable as a secondary infringer of the reproduction right....." -Hon. Neil V. Wake, District Judge, District of Arizona, April 29, 2008, Atlantic v. Howell, 2008 ILRWeb (P&F) 1665
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"[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

QUOTATIONS FROM DECISIONS

"While the Plaintiffs object to the narrowcasting of this proceeding, .... their objections are curious.....[They] have represented that they initiated these lawsuits ...because... they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation."
-Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, January 14, 2009, London-Sire Records v. Does 1-4
"Merely because the defendant has "completed all the steps necessary for distribution" does not necessarily mean that a distribution has actually occurred. It is a "distribution" that the statute plainly requires. See 17 U.S.C. [sec.] 106(3)."
-Hon. Nancy Gertner, District Judge, District of Massachusetts, March 31, 2008, London-Sire v. Doe 1, 542 F.Supp.2d 153, 2008 WL 887491
"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
"[D]istributing unlawful copies of a copyrighted work does violate the copyright owner's distribution right and, as a result, constitutes copyright infringement. In order to establish "distribution" of a copyrighted work, a party must show that an unlawful copy was disseminated "to the public." 17 U.S.C. [sec]106(3); see National Car Rental v. Computer Associates , 991 F.2d 426, 434 (8th Cir. 1993); 2 Nimmer, [sec]. 8.11[A] at 8-137."
-Hon. John D. Butzner, Jr., Fourth Circuit, June 30, 1997, Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199
"[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
*List of quotations