Thursday, December 27, 2007

Northern Michigan motion to dismiss complaint, vacate order, quash subpoena, in LaFace v. Does 1-5, now fully briefed

The motion by a student at Northern Michigan University to dismiss the complaint, vacate the ex parte order, and quash the subpoena issued pursuant to the order, in LaFace v. Does 1-5, has now been fully briefed, as the RIAA has filed its opposition papers, and John Doe #4 has filed his or her reply memorandum.

RIAA Opposition Brief*
Defendant's Reply Brief*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet 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 intellectual property






4 comments:

Art said...

The defendant makes a good argument that (1) the plaintiffs are making a claim under Title 17 USC, (2) Title 17 USC (as ammended by the DMCA) includes rules for issuing subpoenas to ISPs and those rules include a notification provision, and (3) FRCP is trumped by the specific statute in this case (see SCOTUS decision Stewart Organization, Inc., v. Ricoh Corporation, 487 U.S. 22 "federal courts are bound to apply laws enacted by Congress with respect to matters over which it has legislative power.").

The RIAA is essentially "forum shopping" in order to avoid the notification provision of Title 17. Providing notification is not a big burden for them.

It makes me wonder what other advantage the RIAA gets by issuing subpoenas via FRCP vs Title 17?

Anon #1 said...

I can't stand to read the Plaintiffs' reply briefs any longer. They are so full of the same old crap every time (e.g. …hundreds of other courts in cases nearly identical to this one…,;we don't have to make a prima facie case at this time, but even if we don't we already have…).

The Defendant's clear, concise reply, however, was like a breath of fresh air.

>Anon #1

Jadeic said...

As I expected, there is nothing new in the RIAA Response. In fact their responses are becoming so jaded as to be beyond boredom. Little surprise then that April Knoch is able eloquently to demolish their arguments so readily. Unfortunately, as we well know, such debate so often falls on judicial deaf ears. However, the more I read of these thrusts and counter-thrusts the more I sense that truth will eventually win the day. I admire the simplicity of posing questions like 'Plaintiff's must certainly comply with the rules, but ought they not also comply with the law?'

I feel hopeful about this one.

But does anyone know anything about the Honorable Paul L Maloney?

Dave

Art said...

Let me partially anwer my question above of "what other advantage the RIAA gets by issuing subpoenas via FRCP vs Title 17".

In short, Title 17 gives them no authority to issue subpoenas whatsoever when P2P is involved. In the RIAA vs Verizon case in the DC Circuit, the appellate court ruled that 17 USC 512(h) subpoenas only apply when the ISP is HOSTING the content. This isn't applicable to P2P cases and congress made no provision applicable to P2P cases in Title 17. The Supreme Court refused to hear the RIAA's appeal. Consequently, the RIAA uses the "Doe" lawsuit approach.

So let me pose a different question. FRCP Rule 45 defines the general form of a subpoena and the process to follow concerning subpoenas, but not by what LAW or AUTHORITY a specific subpoena is issued. So if Title 17 is the basis of their suit, but Title 17 provides no authority to issue subpoenas in P2P cases, then what LAW is the basis for their subpoena?

How can personal privacy be so easily violated by the court without any legal basis? So if I loose my car keys, and suspect my neighbor's wife has them in her bra, then I can get a subpoena to search for them there? According to the RIAA, a mere allegation gives them the authority.

Regards,
Art