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:
Heise Online (German)
Associated Press (via KATU.com)
Bloomberg News (via The Tennessean)
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