Recording Industry vs The People: In 4 Brooklyn cases, RIAA asks Court permission to file untimely motions to dismiss counterclaims

Thursday, December 13, 2007

In 4 Brooklyn cases, RIAA asks Court permission to file untimely motions to dismiss counterclaims

In four (4) Brooklyn cases, including Warner v. Attal, in which the defendants are represented by Jaime Lathrop of Brooklyn, the RIAA has requested permission to file untimely motions to dismiss the defendants' counterclaims.

The defendants have opposed the request.

December 12, 2007, Letter of Richard Guida to Judge Trager requesting permission for late filing of motions*
December 12, 2007, Letter of Jaime Lathrop to Judge Trager opposing RIAA request for permission for late filing of motions*
December 13, 2007, Letter of Richard Guida to Hon. David G. Trager*

* 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

8 comments:

Alter_Fritz said...: good chance to see if the Honorable Judge Trager is "pro juris" (sp?) or "pro RIAA" depending how he decides...; December 13, 2007 at 5:03:00 PM EST
Art said...: Here was the last draft version just before the final one that was filed:

Dear Judge,

I know we ruthlessly jump on any procedural error made by the defendants in any one of our thousands of cases. But you should forgive us for not following proper procedures ourselves, because there's like trillions of illegal files being shared on the Internet. There's only so much time in the day to suck money from artists and innocent music consumers. Besides, our dog really did eat our brief!

Regards,
Attorneys for the Plaintiffs; December 13, 2007 at 6:24:00 PM EST
Anonymous said...: …but asks that Plaintiffs themselves not be penalized for their counsel's mistake.

I see here how the RIAA attorneys seek to make themselves separate from their clients, so when they screw up they can whine that the innocent Plaintiffs not suffer for such incompetence. They also imply that neither should the attorneys pay any price for their mistakes here. In fact, we should just skip over all these silly rules and conferences. If this were to be the standard for proper law practice, why even have rules at all since they are meaningless in the above context.

The RIAA lawyers also claim that although they admit not sending motion papers to one Defendant at all, that because the claims are the same and the attorney of record is the same, that this is the same as sending it to everyone. This echoes of the infamous Chewbacca Defense.

Clearly the Plaintiff's attorneys don't want to have to be bothered with rules or pre-trail[sic] conferences. Hey, those RIAA attorneys have lots of cases to pursue, and no time to waste on individual conferences times four – once for each Defendant. In fact, I strongly suspect that they're stretched so thin already that they'd have trouble making it to all these conferences (times 4), so why not just dispense with them altogether and get on to the directed judgment in the Plaintiff's favor? (In fairness, I must point out that the Defense offers a differing explanation on why Plaintiffs might wish to skip such conferences.)

I love how the term "forum shopping" has been interjected so neatly into the matter at hand. This whole idea of the RIAA dropping cases when things seem to go against them, while designating unrelated cases as "related" when they feel they have a friendly judge, is exactly their pattern to this outside observer.

Can anybody identify that lovely font that Jamie Lathrop uses as a printed signature?

--TTY; December 13, 2007 at 6:53:00 PM EST
Alter_Fritz said...: tty
according to the pdf source text it is "English111VivaceBT-Regular" (Font20 in the pdf identified at 000474d4)
And indeed it looks very much like the font named that way found here with google search for the name

http://www.outlawbydesign.com/fonts.html

(Note I don't know the legal status of that font. Download it at your own risk!)

http://www.outlawbydesign.com/graphics/fonts/englishvivace.zip; December 14, 2007 at 12:32:00 AM EST
Anonymous said...: Alter Fritz,

Reading the PDF source is an impressive feat. It's not the most user friendly (think XML as something that is) format. Thanks for the font identifier.

Can you also tell me if the RIAA's arguments make any more sense when viewed in raw PDF encoding?

--TTY; December 14, 2007 at 10:33:00 AM EST
Alter_Fritz said...: well, RIAA lawyers papers are glibberish no matter if you view them in notepad, Irfan View's Hex view or as intended as a PDF ;-)

But this one here from Mr. Lanthrop is even in notepad pleasing to read :-); December 14, 2007 at 11:36:00 AM EST
Virtualchoirboy said...: My first thought after reading the request from the RIAA (and before reading the reply) was that perhaps Mr. Lathrop did not do anything about the motions to dismiss because he was waiting for the pre-motion conference. No pre-motion conference = no action necessary.

Of course, in reading the reply we find that the RIAA WERE notified of their failure and STILL failed to do what was required. In my opinion, they're either horribly incompetent or were planning on late filing all along.

I also agree with alter_fritz in that this may be a good test to see where the Honorable Judge Trager's opinions really lay.; December 14, 2007 at 11:46:00 AM EST
Art said...: Ray,

Now Plaintiffs have waived their copying and distribution rights!

They claim that defendants waive their "tresspass to chattels" right as follows:

...by using an online file sharing program to distribute files over the Internet to other users, Defendants opened their computer to the world...

They release their copyrighted works on media that does not prevent riping or copying (e.g., CDs, tapes, LPs, etc.). This leaves their works "open to the world". So, using their logic, it follows that they have waived their copying and distribution rights.

Case dismissed!!!

Regards,
Art; December 14, 2007 at 2:10:00 PM EST

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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