Recording Industry vs The People: RIAA Asks Judges Karas and Robinson Not to Follow Interscope v. Rodriguez in Barker & Cassin cases

Thursday, September 13, 2007

RIAA Asks Judges Karas and Robinson Not to Follow Interscope v. Rodriguez in Barker & Cassin cases

After defendants brought to the attention of the judges in Elektra v. Barker and Warner v. Cassin the decision in Interscope v. Rodriguez, holding that the RIAA's complaint is just "conclusory" "boilerplate" "speculation", and fails to state a claim for relief, the RIAA has now responded, asking both Judges Karas and Robinson not to follow Rodriguez.

September 12, 2007, Letter of Brian E. Moran to Hon. Kenneth M. Karas*
September 12, 2007, Letter of Brian E. Moran to Hon. Stephen C. Robinson*

* Document published online at Internet Law & Regulation

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

5 comments:

AMD FanBoi said...: Wow, that's a surprise!
[/sarcasm]; September 13, 2007 at 11:33:00 AM EDT
AMD FanBoi said...: If I was rebutting the RIAA lawyer's letter here, I would be pointing out that not a single case out of the 20,000+ plus filed so far has actually prevailed at trial. And some demonstrably, if not outrageously, wrong ("identified an individual", "infringement is continuous and ongoing", "making available is sufficient", "...and/or...") statements have been made by the Plaintiff's lawyers so far to keep these cases alive.

I also note that the RIAA lawyer is promoting herd behavior among the judges hearing these cases. Sort of a: "if other judges have thought this way, then so should you." Or is that lemming behavior? Either way, I would hope that a judge, were I in court, would be looking at my own case, and not a bunch of other cases, none of which have yet withstood trial.

The real truth here, as seen by us outside of the court room, is that the RIAA doesn't have a case, but wants to continue pre-trial activities as long as possible to terrorize Defendants into possibly throwing other people under the bus, and run up legal bills as punishment for daring to own an Internet account. As such, the RIAA and their lawyers are judge, jury, and executioner, and the legal system is simply their tool of choice. The court system should never allow itself to be used for such punitive behavior.

Btw, given what happened in Interscope, I hope that the supplied copyrights in these other cases are now being carefully inspected. In fact, the RIAA should immediately drop any case where the copyrights aren't completely in order, lest they lose on that point alone and set an undesirable (for them) precedent.

I like the way Plaintiff's lawyers refer to an "unauthorized" peer to peer [sic] network. It leaves me wondering just who is in charge of "authorizing" such networks, and which networks are already "authorized"? The fact that they can refer to it as "unauthorized" implies strongly that at least another category of P2P exists, and that such networks can be authorized. Or is this just more lawyer B.S. to confuse judges?

Of course, Plaintiffs have yet to show a single instance of "unauthorized distribution", which they adroitly attempt to skip over in their letter where they continue to maintain that they've made their case already based on having copyrights. Nor do they state how they can possibly prove this in court. Even if the files were actually found on the computer in question, that doesn't make the case for distribution. That's like saying that, because I could rob a bank, that I did rob a bank, without showing that I ever actually robbed that bank.

Regarding their "substantial evidence", THEY DID NOT attach the Defendant's share folder. They attached a screen shot of a program run on another computer that's never been inspected and is located far away that purports to indicate the CONTENTS of a folder on a computer they've never seen. This share folder, if it exists, is on a hard drive somewhere, and not attached to this letter.

I wonder how the judge in Interscope feels about being called an "outlier"?; September 13, 2007 at 12:07:00 PM EDT
Alter_Fritz said...: "I like the way Plaintiff's lawyers refer to an "unauthorized" peer to peer [sic] network. It leaves me wondering just who is in charge of "authorizing" such networks, and which networks are already "authorized"?"

AMD haven't you heard the news yet?

The widely used BitTorrent™ p2p network is "authorized"! (at least clearly by the MPAA and by premium cable television operators)

See for example http://www.bittorrent.com/tv-shows or azureus/vuze ( http://www.vuze.com/channel/showtime ) who offer "authorised" p2pnetwork now.
While BitTorrent also offers music; given the fact that even the plaintiffs here don't get the copyrightregistration thingy in order as pointed out in the case that will start trial in about 2 weeks, I'm not sure if the music from BitTorrent is authorized too.

But taking Mr Moron's argument about non authorized networks from a pure logical standpoint, I guess thanks to him it's time to start using Bittorrent now. Brian, the RIAA lawyer told us so. ;-)

Thanks Brian!; September 13, 2007 at 1:14:00 PM EDT
Alter_Fritz said...: Instead of following RIAAS "suggestion" not to follow Honorable Brewster's well reasoned decision to dismiss, maybe the purpose of copyrightlaw would benefit more if the other judges would read for example "Economic Contribution of Industries Relying on Fair Use"
"While policymakers pay much attention to copyrights, exceptions to
copyright protection also promote innovation and are a major catalyst
of U.S. economic growth. Specific exceptions to copyright protection
under U.S. and international law, generally classified under the broad
heading of Fair Use, are vital to many industries and stimulate growth
across the economy. Companies benefiting from fair use generate
substantial revenue, employ millions of workers, and, in 2006,
represented one-sixth of total U.S. GDP."

http://www.ccianet.org/artmanager/uploads/1/FairUseStudy-Sep12.pdf; September 13, 2007 at 1:42:00 PM EDT
Art said...: Plaintiffs say their claim in Interscope wasn't dismissed, but the order in that case says "...the Court finds that the complaint fails to sufficiently plead a claim upon which relief can be granted..." and the Plaintiffs can "...re-serve the complaint..." within 30 days. Sounds to me like it was dismissed unless the Plaintiffs have any actual facts to present in a new re-served claim (which they don't have any facts).

Given that the dismissal in Interscope was due to lack of sufficient facts presented by Plaintiffs, in this response Plaintiffs continue to present conclusory statements as if they were facts. E.g., "Plaintiffs have also specifically alleged that Defendant has violated their exclusive rights ... by downloading and distributing such recordings [using a P2P network]." However, the point is that there are no facts provided by them to indicate any specific acts of infringement by anyone, much less anything to support that Defendant did anything they claim.

It's also incredible that they claim to have provided the "Defendant's share folder" as if a logical concept such as a directory on a computer filesystem were a tangible object that can be displayed in court, or that the dubious screenshots they provide are somehow related to the Defendant.

The fact is that in this case (as in Interscope) the Plaintiffs have failed to sufficiently plead a claim for which relief can be granted. The judge must decide in favor of the Defendant.

Regards,
Art; September 13, 2007 at 10:56:00 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