Recording Industry vs The People: Court Issues Stay of Subpoena in University of South Florida case

Tuesday, August 14, 2007

Court Issues Stay of Subpoena in University of South Florida case

In Interscope v. Does 1-40, the Tampa, Florida, case in which two (2) University of South Florida students designated as "John Does" by the RIAA have gotten together, hired a lawyer, and made a motion to quash the subpoena directed to the University, the Court has stayed the subpoena pending resolution of the motion.

The language of the docket entry reads as follows:

ORDER GRANTING [14] MOTION for protective order or in the alternative to quash ex parte subpoena filed by Doe #37, Doe #21 to the extent that
responses to this subpoena are STAYED pending resolution of this
motion. Signed by Judge Thomas G. Wilson on 8/13/2007. (Williams, Carrie)

However, the language of the order seems to say that responses are only stayed as to John Does #21 and #37.

Order Staying Subpoena*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net

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

9 comments:

AMD FanBoi said...: There must be a few other Does that wish that they'd joined this case at this point.

But why aren't they requesting complete severance as well? They're, fortunately, not Doe #1, meaning if they were severed they're out of the case entirely until -- if ever -- it's refiled individually against each one of them.; August 14, 2007 at 7:34:00 PM EDT
raybeckerman said...: They asked for dismissal as to all Does other than John Doe #1. That was the right thing to ask for.; August 14, 2007 at 11:50:00 PM EDT
Alter_Fritz said...: Ray, your quoting of the order is not 100% the same as in the pdf.
the pdf reads; "[...]Granted to the extent that
responses to this subpoena regarding John Does #21 and #37 are STAYED pending resolution of this motion"

Don't get me wrong, I don't want to do nitpicking by correcting you but since we all know how well versed RIAA lawyers are in using weasel words; From the plain language of the order as this non-native speaker here understands it, isn't it reasonable to assume RIAA will argue and demand that University has still to comply with the suponea with respect to all the other 38 Does?

But despite my beforementioned fear I guess it's a good sign to see yet another judge acting resonable in repect of what the rules supply and not as an lakai for "well-known and respected record companies" helping them in their run around resonable FRCP provisions.; August 15, 2007 at 1:27:00 AM EDT
raybeckerman said...: alter_fritz, I wasn't quoting from the order, I was quoting from the docket sheet. It was an exact quote.; August 15, 2007 at 9:12:00 AM EDT
raybeckerman said...: alter_fritz, thank you very much for bringing that discrepancy -- between the docket sheet and the order -- to my attention. I have amended the post to reflect the discrepancy.

I'm lucky to have such an astute reader!!!!

The moral of the story is that the other 38 students should have been smart enough to seek legal counsel as well.; August 15, 2007 at 9:20:00 AM EDT
bbsux said...: Ray,

Am I missing something? if these 2 "doe's" are able to get their portion of the supoena quashed -- doesn't it automatically quash the rest? (forgetting the texas order that says they actually have to file these one at a time and not join unrelated doe's in a lawsuit)

AND IF it does and the university has already given info to the Riaa, then what?; August 15, 2007 at 9:41:00 AM EDT
raybeckerman said...: Well bbsux, I feel sorry for the 38 people who weren't smart enough to consult with an attorney. But that's the way the legal system is. If you don't stand up for your rights, no one's going to do it for you.

Of course I think the judge should have stayed the whole thing. It's one subpoena. If it's wrong as to 2 people it's wrong as to all of them.

But that's what happened.

The moral of the story: every student who is a John Doe should get themselves into a lawyer's office. If all 40 had gone into Michael's office in Tampa, they could have split the cost of the motion 40 ways and it would have cost each of them next to nothing.

As it now stands, the RIAA could well decide to drop the whole thing against Michael's 2 clients and just pursue it against the other 38. Which would probably be the smart play at this point, to avoid a negative precedent.; August 15, 2007 at 10:35:00 AM EDT
AMD FanBoi said...: Alter_fritz, your posts are great!

And "lackey" is the word you were searching for, meaning among other things, "minion".; August 15, 2007 at 12:34:00 PM EDT
Alter_Fritz said...: <smart ass mode>
AMD, actualy me wasn't searching, me was of course just thinking german* </smart ass mode>

:P

* http://de.wikipedia.org/w/index.php?title=Lakai&oldid=35431843; August 15, 2007 at 3:03:00 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