Recording Industry vs. The People

Thursday, August 09, 2007

University of South Florida Students Attack RIAA's Ex Parte Order

Two University of South Florida students have gotten together and made motions, in Interscope v. Does 1-40, to (a) dismiss the RIAA's ex parte case on the ground of misjoinder, and (b) vacate the ex parte order and quash the subpoena directed to the university seeking student identities.

Memorandum of Law in Support of Motion to Dismiss for Misjoinder*
Memorandum of Law in Support of Motion to Quash Subpoena*

* Document published online at Internet Law & Regulation

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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 @ 8/09/2007 09:12:00 AM

5 Comments:

First, MAC addresses can be changed by the user in many cases.
Correct, even under Windows. You can do it manually or with some third-party program. I'd be surprised if any even mildly tech-savvy person using any sort of P2P application didn't first change his MAC address before connecting so that the card's actual address remained "clean".

It might also be on file with the manufacturer who sold you the equipment.
The MAC address includes a manufacturer ID which can be easily looked up. The manufacturer can identify a particular ID and match it to a specific card and serial number, another reason to spoof a MAC address before connecting on-line.

if you're behind a NATing router, wireless connection, or some other hardware, the MAC address of that router will be the one detected, not of the actual computer.
And if there's a wireless router anywhere behind that, plausible deniability comes into play since even when encrypted, access isn't difficult. the WEP protocol has been thoroughly broken and WKA will fall next.

RIAA's lawyers are only getting away with their spurious claims and arguments about IP and MAC addresses identifying specific people because the judges aren't technically savvy and the defense lawyers aren't able to explain the workings (such as the difference between circuit- and packet-switched networks) in a way that can be easily understood, allowing RIAA to keep pulling out their old (and frankly, deceitful) telephone analogy.

By ReallyEvilCanine, at August 10, 2007 10:11:00 AM EDT

I beleive that the courts need to follow the decisions of:

* Interscope Records v Does 1-25
* BMG Music v Does 1-203
* In re: Cases Filed By Recording Companies

I feel that misjoinder is an RIAA trick to file with less fees to run an "information farming" lawsuit and then to dismiss them. Sadly, the RIAA wants to play it cheap!

By StephenH, at August 11, 2007 1:21:00 PM EDT

Ray,

I have a question: On these john doe lawssuits can anyone who may potentially be a John doe file to sever/quash? Lets say RIAA files against a University...and your University did not forward the notice to the students...Can any student hearing of the suit file to sever/quash since potentially they can be the john doe? Even if they may not have standing at the end because they aren't the John Doe?

Reason I ask is I was thinking that it could be possible for a random student (or ex-student) to borrow one of these motions to quash/sever, change a few lines and file them and force the RIAA to respond. If that happens at every university as soon as the RIAA announces a new round it might make it much more expensive for RIAA during this phase. Also, since RIAA then voluntarily dismiss these suits, anyone contesting won't be on the hook for attorney's fees?

Just a thought, what do you think?

-Igor

By Iggy, at August 13, 2007 2:42:00 AM EDT

AMD, If the universities don't defend the privacy laws, the students will have to do it. Lots of luck on getting the Justice Department to intervene on behalf of the students. OK you're in charge of getting that done.

Agreed, realevilcanine.

You're right stephenh. The RIAA is in contempt of the Austin, Texas, order.

By Ray Beckerman, at August 15, 2007 12:09:00 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

"[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

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"The defenses which have possible merit include... whether the amount of statutory damages available under the Copyright Act, measured against the actual money damages suffered, is unconstitutionally excessive...". -Hon. Janet Bond Arterton, Dist. Judge, D. Connecticut, February 13, 2008, Atlantic Recording Corp. v. Brennan, 534 F. Supp. 2d 278

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"'[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

"The disparity between compensatory and punitive damages in this case further supports the conclusion that the punitive damages award is unconstitutional .... Although the Supreme Court has repeatedly rejected the use of bright-line rules, it has cautioned that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process,” State Farm, 538 U.S. at 425, and it has noted that “an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.” Id. (citing Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24 (1991)); see also Clark, 436 F.3d at 606...... Here, defendants’ conduct, although willful, was not highly reprehensible ..... [A] ratio of closer to 1:1 or 2:1 is all that due process can tolerate in this case ......" -U.S. Ct. App., 6th Cir., March 25, 2008, Bridgeport Music v. Justin Combs Pub., 507 F.3d 570, cert. denied 2008 U.S. LEXIS 6770

"[T]he prevailing party in Copyright Act litigation is presumptively entitled to an award of fees under § 505....In the case of prevailing defendants, we have described this presumption as "very strong."...There is no question that a dismissal with prejudice makes the defendant the prevailing party for purposes of an award of attorney's fees under § 505.... This is no less true when a case is dismissed because the plaintiff "threw in the towel"--that is, where the dismissal is on the plaintiff's own motion.", US Court of Appeals, 7th Cir., May 27, 2008, Mostly Memories v. For Your Ease Only, 526 F.3d 1093

"[Defendant] obtained a favorable judgment. That this came about when [plaintiff] threw in the towel does not make [Defendant] less the victor than it would have been had the judge granted summary judgment or a jury returned a verdict in its favor. [Plaintiff] sued; [Defendant] won; no more is required." U.S. Court of Appeals, 7th Cir., 2008, Riviera Distributors, Inc. v. Jones, 517 F.3d 926

"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

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"Plaintiff ... must present at least some facts to show the plausibility of their allegations of copyright infringement....However, .... Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation."
-Hon. Rudi M. Brewster, Senior District Judge, Southern District of California, August 17, 2007, Interscope v. Rodriguez,2007 WL 2408484

"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

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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
"[N]either Florida's litigation privilege nor the Noerr-Pennington Doctrine serves as a shield for sham litigation." -Hon. Richard A. Lazzara, District Judge, Middle District of Florida, September 19, 2007, UMG v. Del Cid, 2007 ILRWeb (P&F) 2721
""[W]ithout actual distribution of copies.... there is no violation [of] the distribution right." 4 William F. Patry, Patry on Copyright ... 13:9 (2007); see also id. N. 10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)(affirming the district court's finding "that distribution requires an `actual dissemination' of a copy")". -Hon. Janet Bond Arterton, District Judge, District of Connecticut, February 13, 2008, Atlantic v. Brennan, 534 F. Supp.2d 278
"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
"Merely making a copy available does not constitute distribution....The statute provides copyright holders with the exclusive right to distribute "copies" of their works to the public "by sale or other transfer of ownership, or by rental, lease, or lending." 17 U.S.C. ...106(3). Unless a copy of the work changes hands in one of the designated ways, a "distribution" under ...106(3) has not taken place." -Hon. Neil V. Wake, District Judge, District of Arizona, April 29, 2008, Atlantic v. Howell, 2008 ILRWeb (P&F) 1665
"In National Car Rental System, Inc. v. Computer Associates Int'l, Inc., the Eighth Circuit stated that "`[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.' 2 Nimmer on Copyright [sec.] 8.11[A], at 8-124.1." 991 F.2d 426, 434 (8th Cir. 1993)..... Neither party presented this Eighth Circuit case to the Court." (Emphasis supplied) -Hon. Michael J. Davis, District Judge, District of Minnesota, May 15, 2008, Capitol v. Thomas
"An offer to distribute does not constitute distribution"-Hon. Neil V. Wake, District Judge, District of Arizona, April 29, 2008, Atlantic v. Howell, 2008 ILRWeb (P&F) 1665
"[P]laintiffs unreasonably rejected or sought to suppress evidence to the extent it tended to exonerate defendant, such as the expert's report concerning the examination of defendant's computer hard drive or her own statements about who had access to her computer. [W]hen plaintiffs dismissed their claims in June 2007, they apparently had no more material evidence to support their claims than they did when they first contacted defendant in February 2005..... (Emphasis supplied)" -Hon. Donald C. Ashmanskas, Magistrate Judge, District of Oregon, September 21, 2007, Atlantic v. Andersen, 2008 WL 185806
"[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

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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