Thursday, November 29, 2007

Oregon Attorney General's Reply Papers Go on the Offensive, Seek Investigation of RIAA Tactics, in Arista v. Does 1-17

In a stinging rebuke to the RIAA's opposition papers, and in further support of the motion by the University of Oregon to quash the RIAA's subpoena seeking the identities of the students, in Arista v. Does 1-17, the Oregon Attorney General has filed reply papers which call for immediate discovery into the RIAA's tactics, and which point out to the Court that

--Carlos Linares, upon whose declaration the subpoena was issued, had no first hand information whatsoever;
--the RIAA's "data mining" investigation does not reveal how the files were obtained or whether they were ever shared with anyone;
--the RIAA papers did not show that any infringing activity actually took place;
--MediaSentry appears to have been conducting an investigation without an investigator's license, in violation of ORS 703.405 and ORS 703.993(s), which is a crime;
--in Atlantic v. Andersen, based on the same theories and investigative techniques as those used here, they had been found by the Court to have stalled and resisted discovery, before abandoning their case rather than oppose Ms. Andersen's summary judgment motion;
--the RIAA appears to have been abusing the judicial process by obtaining information through subpoenas which it then hands over to "collection firms" using them "to leverage payment of arbitrary sums of money, based on threats and evidence from the data mining";
--the RIAA concealed a material fact from its original ex parte motion papers, which sought to create the aura of an emergency and the need for immediate ex parte action -- the fact that the University had informed the RIAA in July that the requested information had been gathered and would be preserved;
--the RIAA lawyers falsely implied that the Attorney General's office had failed to "meet and confer" with them prior to making the motion to quash, even though the AG's office had in fact conferred with the RIAA's lawyers;
--the deposition testimony of the RIAA's expert witness Doug Jacobson in UMG v. Lindor tends to indicate that the RIAA has already accessed private information on the computers of University of Oregon students; and
--the RIAA has failed to provide an affidavit of the individual who actually conducted the 'investigation'.

The AG also pointed out that

Because Plaintiffs routinely obtain ex parte discovery in their John Doe infringement suits, as they themselves have pointed out, their factual assertions supporting their good cause argument are never challenged by an adverse party and their investigative methods remain free of scrutiny. They often settle their cases quickly before defendants obtain legal representation and begin to conduct discovery, as Mr. Rothman attested they did in the 2003 Portland State University case, and have dropped cases, such as their case against Tanya Andersen, in which their methods and practices have been challenged through counterclaims. Opposition, Exhibit 4, p. 2,76 &Affidavit of von Ter Stegge, Exhibit C, p. 12 ("In poker terms, defendant didn't call; plaintiffs folded").

While the University is not a party to the case, Plaintiffs' subpoena affects the university's rights and obligations. Plaintiffs may be spying on students who use the University's computer system and may be accessing much more than IP addresses. The University seeks the Court's permission to serve the attached interrogatories on Plaintiffs and conduct telephonic depositions of the individuals who investigated the seventeen John Does named in this lawsuit to determine 1) what their investigative practices are and 2) whether they have any additional information with which to identify the John Does. Plaintiffs have refused to provide the University with answers to these basic questions. If Plaintiffs have nothing to hide, they should be able to agree to these reasonable requests. Since Plaintiffs have declined to share any information about what they know and how they know it, the University seeks the assistance of the Court to obtain it.

Oregon Attorney General Reply Memorandum of Law*
Oregon Attorney General Reply Affidavit*
Exhibit F (Excerpt from Doug Jacobson deposition transcript in UMG v. Lindor)*
Exhibit H (Draft Interrogatories)*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet
TechDirt
Heise Online (German)
ZDNet
Slyck
Ars Technica
Associated Press (via KATU.com)
Infomatics
Bloomberg News (via The Tennessean)
The Inquirer
p2pnet (11/30)
Slashdot
Computer World
Read/Write Web
Afterdawn.com
The Oregonian
ZeroPaid
Information Week


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23 comments:

Scott said...

Will you be posting the interrogatories?

Alter_Fritz said...

Scott, the magic word is "bitte" (please) :-)

And I second your fequest since I was about to ask Ray myself for that exhibit.

Ray,. würdest du bitte das entsprechende Schriftstück veröffentlichen?! ;-)

Ray Beckerman said...

Done.

(Plus I've posted Dr. Doug's deposition excerpt.)

Ray Beckerman said...

Okay, ich habe das entsprechende Dokument veröffentlicht. Sind Sie glücklich?

Anonymous said...

The RIAA should cut and run from this case as fast as they can. No state AG ever intends to be embarrassed on any case they enter, and they have the resources of an entire state behind them. Fighting this battle and losing it will only consume expensive resources on the RIAA's side, while opening the door towards exposing every weakness in their cases. Oregon has shown that they truly intend to fight (something I'm sure the RIAA didn't expect from any elected governmental entity), and that's the worst of all possible outcomes for the RIAA and their tactics.

--TTU

Jadeic said...

This is a pretty impressive demolition job of the RIAA edifice that must surely give them pause for thought. It seems this is Catch-22 for them: any attempt to 'cut and run' should simply re-enforce the AG's argument against them in the Court's eyes, while standing up to 'face the music' (sorry - couldn't resist that!) will cause serious headaches for their litigation team(s). I look forward to the response with relish.

Jadeic said...

Whoa - it seems that sometime between reading Scott's first post and drafting my contribution we switched to German.

Ich möchte Sie warnen, dass mein Deutsch ist schrecklich, aber ich werde mein Bestes tun.


Tschüss

Dave

Barry said...

Minor nitpick, it should be ORS 703.405, rather than 703.045.

I wonder if the employees of MediaSentry can be charged individually, since investigator licensing is done individually in Oregon.

Alter_Fritz said...

Ja, danke schön.

by the way Raymond you can say you to me ;-)
http://german.about.com/b/2007/10/06/when-to-use-sie-or-du.htm

Igor said...

It will be interesting to see if the AG decides to start a separate action against Media Sentry and their investigators for practicing without a license.

Ray Beckerman said...

They're the law enforcement agency for the State of Oregon. They have to.

Jadeic said...

Das schmeckt gut, ja!

Jadeic said...

This could get very messy, very quickly.

Dave

Doug Stewart said...

Sometimes it seems that once the lawyers take over, sense goes out the window. Logic dictates that this case should be brought to a close. However, the more it drags on, the more money the lawyers get. So why should they stop it even when it is in their client's interest?

skeeter said...

I assume Oregon Universities will now join Harvard on the RIAA's "Do Not Sue" list.

Scott said...

alter_fritz: It was a simple question. I didn't think it was impolite.

Ray Beckerman said...

No, alter, Scott's question wasn't impolite. He was asking me if I was going to do it. He wasn't asking me to do it.

Russell said...

At this point can the RIAA withdraw and prevent the AG from pursuing this information or since the AG's concerned about the RIAA's actions not its' accusation can the AG continue regardless of the case against the John Does.

Mike said...

This reply is a serious breath of fresh air and just chock full of "win" in my opinion.

My first favorite part is footnote #5 on page 6:
The State has a unique interest in policing trade and commerce and has the power to conduct investigations and take enforcement actions pursuant to [multiple listed Oregon statutes] No such actions are pending now.

Sounds like a "cut it out or you'll REALLY be in trouble" message to me... :-)

I am also glad to see on Page 8 where they mention the 2004 cases in Texas where Doe's 2+ were dismissed due to improper joinder.

The AG also seems to be coming at the IP address vs individual vs actual infringer from a whole new angle as well with the arguments over "undue burden". The request from plaintiffs ask the University to identify the "alleged infringer" and the AG is interpreting that as it should be - that the account holder may not actually be the person doing the infringing. Well done bit of reasoning here.

I would hope this last bit of reasoning would get picked up by all ISP's and used to quash these cases at the John Doe stage. Ahhh - gotta love a good dream... :-)

ryan said...

As an added bonus, all the court commentary here by the AG's office is nothing but extra weight for the Anderson case. It never hurts to have the AG agreeing w/ you in theory on a subject.

Dave said...

While it is a seductive scenario to expect the full weight of Oregon law to descend on the RIAA and its investigation, I'm not sure that there is a general duty for the state to investigate, never mind prosecute, every crime. But the ball has started rolling.

The question of state licencing of investigators has some obvious implications for any investigation taking place over the net. And most of the issues must have come up in relation to telephones.

Shanon said...

I think the fact that that MediaSentry and other investigation firms are getting all their information through unlicensed investigations is one of the biggest points to be made when defending these lawsuits. Whether it rises to the level of excluding the evidence is another issue, but this practice and the issue of excessive damages in violation of substantive due process are two of the strongest points to be made outside the more technical shortcomings of the RIAA's claims.

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