Recording Industry vs The People: In Response to Dismissal Motion in Elektra v. Schwartz, RIAA Asks Defendant's Lawyer to Help Them Re-draft Complaint

Monday, October 01, 2007

In Response to Dismissal Motion in Elektra v. Schwartz, RIAA Asks Defendant's Lawyer to Help Them Re-draft Complaint

In Elektra v. Schwartz,where Ms. Schwartz indicated that she is moving to dismiss the complaint, the RIAA took the most unusual step of reaching out to Ms. Schwartz's lawyer and asking him to help them re-draft their complaint.

Plaintiff's counsel sent the following in an email to Ms. Schwartz's lawyer:

Obviously, Plaintiffs maintain that their complaint is sufficient under Fed. R. Civ. P. 8, even in light of the Supreme Court's holding in Twombly. Nevertheless, in the interest of efficiency, we inquire as to what precisely Defendant contends is lacking from Plaintiffs' Complaint for Defendant to consider it sufficient. Perhaps Plaintiffs may be able to satisfy these alleged deficiencies and spare both parties additional and unnecessary motions practice.

His response was:

Plaintiffs have no case whatsoever against Ms. Schwartz, and their case against her was frivolous in its inception. Accordingly, there are no facts they can allege that will satisfy the plausibility standard.

Pressed further, he further responded:

You have shown yourself to be an extremely clever lawyer, and would no doubt have no problem whatsoever drafting an appropriate pleading had you any facts or law upon which to base such a pleading.

The problem is that you do not have a case against Ms. Schwartz. There is, therefore, nothing you can truthfully allege that will satisfy the 'plausibility' pleading standard.

You would therefore to do well to dismiss the case with prejudice in order to avoid expanding even further yours and your clients' exposure to attorneys fees, damages, and sanctions.

For your reference, attached is a copy of the decision in Morton v. Seltzer, 336 Mont. 225, 154 P.3d 561 (2007), where a plaintiffs' law firm was held liable to the defendant for damages for conduct quite similar to your conduct in the instant case.

Also, attached are copies of Capitol v. Foster, 2007 WL 1028532 and 2007 WL 1223826, resulting in a $68,685.23 attorneys fee award against your clients based upon your firm's pursuit of a case very similar to the instant case.

Pressed yet again he responded finally:

You asked me to supply you with the facts you would need to prepare an amended pleading that would survive a dismissal motion. Not only do I not know of any such facts, I am certain that no such facts exist.

A copy of the entire email exchange is as follows:

September 20th-21st email exchange*

The exchange came to light when the RIAA filed an abbreviated version of the email exchange in connection with correspondence concerning Ms. Schwartz's motion for judgment on the pleadings to dismiss the complaint.

October 1, 2007, Letter of Richard L. Gabriel to Hon. David G. Trager (Re Defendant's Motion for Judgment on Pleadings)*
Exhibit A, abbreviated version of September 20th-21st email exchange*
October 1, 2007, Letter of Richard L. Gabriel to Hon. Robert M. Levy (Re Motion for Stay During Pendency of Defendant's Motion for Judgment on the Pleadings)*
Exhibit A (Letter and enclosures to Judge Trager)*
October 1, 2007, Letter of Ray Beckerman to Hon. David G. Trager (Re Defendant's Motion for Judgment on Pleadings)*
Exhibit A, Omitted September 21, 2007, 2:56 P.M., email of Ray Beckerman*
October 1, 2007, Letter of Ray Beckerman to Hon. Robert M. Levy (Re Motion for Stay During Pendency of Defendant's Motion for Judgment on the Pleadings)*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
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The Daily Swarm

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

13 comments:

AMD FanBoi said...: The RIAA has GOT to be kidding!; October 1, 2007 at 4:06:00 PM EDT
AMD FanBoi said...: One additional point: The shorter letter should always win. The reasoning behind this should be axiomatic.; October 1, 2007 at 4:27:00 PM EDT
Megan said...: Oh good grief.

"Excuse me, sir, would you be so good as to tell me what I need to write down in order to sue your client more effectively? I found this bar membership in a box of Cracker Jack and am trying to sort out how it all works."

I'm sure Ray's responses are far more tactful than mine would be in a similar situation.; October 1, 2007 at 4:33:00 PM EDT
raybeckerman said...: They are a piece of work, are they not?

I must confess that I did have much longer responses drafted, and it took all of my restraint and professionalism to cut them back down to what was necessary.; October 1, 2007 at 5:32:00 PM EDT
Unknown said...: I'm surprised they made those emails available in the public record. It makes them look like fools and idiots (well more than before, anyway).; October 1, 2007 at 5:38:00 PM EDT
raybeckerman said...: Yes, stevger, I was astounded that they made the mistake of bringing them to the Court's attention, and placing them in the public record.; October 1, 2007 at 5:53:00 PM EDT
raybeckerman said...: I posted a story on "Slashdot". My submission is presently in the "Firehose".; October 1, 2007 at 5:57:00 PM EDT
Alter_Fritz said...: "For your reference, attached is a copy of the decision in Morton v. Seltzer, 336 Mont. 225, 154 P.3d 561 (2007), where a plaintiffs' law firm was held liable to the defendant for damages for conduct quite similar to your conduct in the instant case."

The decision:

http://fnweb1.isd.doa.state.mt.us/idmws/docContent.dll?Library=CISDOCSVR01^doaisd510&ID=003768619

and thanks to an oviously innovative judicial branch in montana we can also listen to the oral argument**
(Alter_Fritz's personal opinion: Wow, that is a cool and inovative use of internet age technologies. If only everybody would adopt so well to the digital age (specially some notorious undisclosed plaintiffs *cough* *cough*)

** http://audiovideo1.law.umt.edu:8080/W.%20Steve%20Seltzer%20v.%20Steve%20Morton%206-28-06 (292765.4KB Online Media Distribution System Streaming found via http://montanacourts.org/argument_archive.asp )

now if only we could get streaming out of Duluth too!

P.S.
@Ray
Is there any hope that you already secretly know more about the upcomming fate of the label plaintiffs in Elektra v. Schwartz or was it (unfortunately) just a "misspoke error" (sp?) "We write in response to the October 1, 2007, letter of defendants, to point out that [...]"

;-); October 1, 2007 at 7:08:00 PM EDT
raybeckerman said...: Well, Alter_Fritz, you caught me in an error. I guess it was a Freudian slip. I think of the record companies as the ones who are violating the law and ignoring copyright law, so think of them as 'pirates'.

I think Morton v. Seltzer shows that Mr. Gabriel and his firm might themselves be 'defendants' based on their "legal thuggery".; October 1, 2007 at 9:38:00 PM EDT
Alter_Fritz said...: sorry, oviously I messed up the (search results scripted) link to the written order.
If either of you other readers are interested in an (IMO fascinating) reading about paintings, forgeries of them, and very very bad behaviour of a lawfirm you can get to the free document in Montanas database following these steps
Click here and choose "Supreme Court Case Number" enter 05-378 so the search finds 7 documents in the database which are javascriptclickable links to the actual document locations.

Btw. it's quite some fun to actually watch(!) the hearing and when it gets interesting at around 62 minutes into the arguments and then imagine for the fun of it and/or rightfull administering of justice that it would/could/should be HRO and RIAA-Richard they are refering about in the last 15 minutes or so of counterargument and rebuttal (sp?) "bring em on" :-); October 1, 2007 at 11:31:00 PM EDT
raybeckerman said...: Well I've been feeling pretty guilty about my less-than-helpful response to Mr. Gabriel's friendly request for assistance.

So I'll give him some free advice.

Richard, don't sue anyone in Montana.; October 1, 2007 at 11:39:00 PM EDT
AMD FanBoi said...: Wouldn't it be a complete breach of ethics to assist the other side to the determent of your client?

And if so, shouldn't it also be a similar breach for the other side to have even asked for this?; October 2, 2007 at 11:31:00 AM EDT
raybeckerman said...: amd.... in this case the cooperation they were asking for would have been impossible.... they were asking me to help them make up facts.... these guys have zero legal ethics and zero appreciation of the fact that this is not a game.... they are destroying people's lives with this....; October 2, 2007 at 11:53:00 AM 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