Recording Industry vs The People: Showdown in Tucson in Loud v. Sanchez on September 10th

Friday, September 07, 2007

Showdown in Tucson in Loud v. Sanchez on September 10th

A number of complicated issues are due to be heard at oral argument on September 10th, in Tucson, Arizona, in Loud v. Sanchez, among them:

-whether the defendant's counterclaims for abuse of process and for a declaratory judgment are legally sufficient, and
-whether the RIAA's practice of citing unpublished decisions citation of which is prohibited by court rules should cause the Court to award sanctions and revoke the pro hac vice admission of the RIAA's Denver lawyer.

This is a case in which the RIAA previously sought to withdraw its case against the father, and then tried to amend the complaint to leave the father in the case but add the daughter as a defendant.

Amended Answer and Counterclaims*
Plaintiffs' Motion to Dismiss Counterclaims*
Defendant's Motion for Sanctions and Opposition to Plaintiffs' Motion to Dismiss Counterclaims*
RIAA Opposition to Motion for Sanctions*
Defendant's Reply in Support of Motion for Sanctions*

* 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

4 comments:

Alter_Fritz said...: "55. Sanchez has never directed any human being to download or make available for distribution any songs."

http://info.riaalawsuits.us/foxtrot070304.jpg

*SCNR* (Sorry, Could Not Resist)

;-); September 7, 2007 at 6:11:00 PM EDT
Alter_Fritz said...: Question:
Do you have somewhere before published "Plaintiffs’ Response to
Sanchez’s Motion to For Order to Show Cause As To Why Plaintiffs’ Counsel Should
Not Be Disciplined for Violating FRAP 36-3."?
As far as I can see, we only have here defendants demand for that and a reaction by him to it, but not the actual response why "Agent Bauer" should not be punished.; September 7, 2007 at 6:59:00 PM EDT
Anonymous said...: This has all the makings of a down and out battle, true brouhaha.

Admittedly I was giddy reading these papers, although I was surprised by the use of bold for emphasis, and somewhat bothered by the use of the word "bogus". That word always conjures up images of Bill and Ted's Excellent Adventure.

I truly hope we get to read some transcripts, I need far less of the MPAA's product when the drama here builds up.; September 7, 2007 at 8:11:00 PM EDT
AMD FanBoi said...: Here are the words that are most damning about the RIAA's entire litigation process:

70. By voluntarily dismissing their cases, the Plaintiffs have prevented the
illegality of their misconduct and improper strategy from being judicially
examined, and have prevented defendants in those cases from being
judicially vindicated.

To amend a complaint that drops all original Defendants, and then adds new ones to avoid having to start the entire process over from the beginning and pay new filing fees totally SMACKS of that fact that they had no true evidence against any of the original Defendants in the first place. This alone should be the cause of MAJOR sanctions!

I wonder if something related to their own lawyer's fees, which continue to accumulate on the same case as long as that case continues, and would be reset if a new case was filed instead, is the REAL REASON for this approach?

RIAA sues wrong person. RIAA has to pay legal fees for suing wrong person to wrong person. RIAA now sues new person, and tries to charge them for all legal fees they had to pay for suing wrong person. New person is required to PAY for RIAA mistakes! What is wrong with this picture?

It is well established by now that an Internet account holder is never automatically libel for possible illegal activities committed on that account, nor can they have ever monitored it use 24-hours a day. Yet these are the people the RIAA continues to sue, except for their recent focus on college students.

Regarding the question of Bad Faith in using unpublished opinions in violation of the rules, one question is certainly paramount: Have RIAA Plaintiffs used these same, or other, unpublished opinions in other cases? The answer to this would certain say a lot? As for myself, I think Plaintiffs are throwing in the kitchen sink just to run up Defendant legal burden and bills as Defendant's attorneys have to wade through amounts of inadmissible evidence!

Btw, I thought in Tucson they still settled these things out on the street, at high noon, with six-shooters.; September 8, 2007 at 3:32:00 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