Today in a telephone conference, a voice intervened which was not that of any of the participating attorneys. It was that of the RIAA's "mystery man", Matthew Oppenheim, who was secretly lurking, unannounced, in the background. (One obvious practice tip: ask the RIAA's lawyer who is participating in the phone call. You may not get an honest answer, but at least you will have asked the question.)
This rather sleazy incident, some might even consider it sharp practice, reminded me of the importance -- to those of you who are interposing copyright misuse as a defense or counterclaim, or who are interposing antitrust counterclaims, based on the plaintiffs' collusive, cartel-like, copyright pooling arrangement -- of getting discovery into Matthew Oppenheim's role in all of this, because it seems clear to me that he is the person controlling all of these cases.
The plaintiffs, 4 large record companies, are supposedly competitors, and yet they have pooled their copyrights, and have authorized one person to speak for all of them, and that is Mr. Oppenheim.
He has been introduced in various mysterious ways, as a 'representative of the industry', as 'the client', as 'the clients' representative', as a member of the "Oppenheim Group" (a "group" of which he may be the only "member"). In Arista v. Does 1-19, the District of Columbia case targeting George Washington University students, he appears as a single practitioner attorney representing the RIAA plaintiffs.
It is fundamental that he is the key to the collusive conduct among these 4 competitors. And it is apparent that the RIAA's lawyers are very nervous about letting us know precisely what Mr. Oppenheim's role is.
In today's conference call Mr. Gabriel refused to identify him other than as "the client". Magistrate Judge Levy accepted that characterization, and over my objection allowed Oppenheim to continue in the telephone conference.
I strongly suggest that any discovery relating to the collusive conduct among the plaintiffs needs to get to the bottom of this issue. Oppenheim every day gives Richard Gabriel his marching orders; who is giving Oppenheim his marching orders? Just exactly who is he working for?
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