For the first time of which we are aware, a university's legal clinic has jumped in to fight the RIAA's ex parte litigation campaign against the nation's college and university campuses.
In Arista v. Does 1-27, where eight University of Maine students are being represented by Bob Mittel of Mittel Asen, a Portland, Maine, law firm, two other "John Doe" students are being represented by student attorneys from the University of Maine School of Law's legal clinic, the Cumberland Legal Aid Clinic, adjacent to the University of Maine School of Law campus, also in Portland.
The student attorneys, Hannah Ames and Lisa Chmelecki, are working under the supervision of Prof. Deirdre M. Smith of the University of Maine School of Law. Professor Smith serves on the Maine Supreme Judicial Court's Advisory Committee on the Rules of Evidence and Governor John Baldacci's Select Committee on Judicial Appointments.
Both the eight students represented by Mr. Mittel's firm, and the two students represented by the student attorneys at Cumberland Legal Aid Clinic, submitted reply briefs in further support of their motion to dismiss the RIAA's complaint.
Reply Memorandum on behalf of "John Does 16 & 18" in support of motion to dismiss complaint*
Reply Memorandum on behalf of "John Does 2, 3, 6, 7, 8, 15, 22, and 23" in support of motion to dismiss complaint*
* Document published online at Internet Law & Regulation
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16 comments:
The two student attys have presented a well researched and cogent argument. From it, it seems the 1st Circuit and the District of Maine have already cited the findings of "Bell" in their opinions and raised the bar from speculation to plausible while the plaintiffs continue to hold on to "liberal standards."
Unfortunately, Robert Mittel's reply on behalf of Doe's 2,3,6 etc. contains some dangerously sloppy wording that may, in fact, serve to support the RIAA case. Taking just a couple of examples:
On page 2 paragraph 1 he states that ‘What they know is that defendants’ computers contained copies of their works on the dates set forth on Exhibit A’ This is exactly what the Plaintiff cannot know at this stage. If all the Plaintiff has is a Limewire screen shot linked to an IP address then all they have is a list of files with the same (or similar) names to material for which they hold the copyright, These files may not even be song files let alone the song files they appear to be. Even if MediaSentry, acting as the Plaintiff’s agent, went so far as to download one of the files then the one thing I have learned from reading this blog is that the file downloaded may have been assembled from many different sources (the whole point of P2P networks) that may or may not have included a source connected to the IP address associated with the Defendant.
Similarly, in paragraph 4, ‘(MediaSentry’s) programs allow them to learn which computers are using the internet to connect to that same site’. This statement, too, is flawed. The best that the Plaintiff can know is the IP address, not the computer.
My point here is that you should not concede to the Plaintiff as an acknowledged ‘fact’ that for which they have no evidence.
Secondly, when so much hinges on precision of terminology in these cases it is inexcusable to refer, on page 2 paragraph 4, to the ‘LimeWire shared file of the users’
computer’ [my emphasis] or, again, even to concede that ‘MediaSentry
allows plaintiffs to learn what music is contained’ therein.
All in all I am not impressed with this submission.
I agree with 'interested observer' and consider that the student attourney's reply is superior to Mittel's
The point they make that all the cases that RIAA cite are pre-Twombly is pertinent and borne out by the fact that on the RIAA site (Piracy Online - The Law) the latest reference for sound recordings is September 2002.
Dave
Regarding the Reply Memorandum on behalf of "John Does 2, 3, 6, 7, 8, 15, 22, and 23" in support of motion to dismiss complaint:
Plaintiffs have absolutely no knowledge that defendants have copied. What they know is that defendants’ computers contained copies of their works on the dates set forth on Exhibit A.
Actually, Plaintiffs know nothing of the sort. They've identified an IP address, an address that may actually identify many computers, none of which may belong to the current Doe Defendants, that appear to have file names that match copyrighted songs they allege to own. At no point would I admit that any of these are my Defendant's computers, were their attorney.
I agree with the previous poster that this is a horrible reply by an attorney who, in effect, admits his clients have all the identified songs on their personal computers, and the necessary P2P software that made them available to MediaSentry. So far, this is as bad as the Jamie Thomas attorney at trial.
--ABC
I think the substance of your criticism of the recitation of facts is accurate. And I would encourage you guys who know more about technology than us lawyers to keep on bringing problems like this to our attention.
But I think the tone of your comments should be more respectful.
I ask you all to bear in mind the following:
1. Not everyone is as knowledgeable as you guys are on this stuff. We lawyers get no training in this type of stuff.
2. Bob Mittel is our friend, and is doing God's work by even agreeing to take on these cases. He is a prominent, well regarded, established attorney, who doesn't need this stuff. He is doing this because, unlike the vermin on the other side, he has a heart and a conscience. So if you're going to provide constructive criticism, do it with the proper measure of respect.
Your reprimand is timely Ray. I stand by the content of my posts but agree that the tone is wrong. My unreserved apologies to Robert Mittel who is, as you say, one of the good guys. That said, if he now realizes how tricksy these cases can be I am sure that if he approached us through this blog we could and would give him any support he required the better to hammer home what should (if there was any justice) the fatal technical and legal flaws in the RIAA case(s).
Part of the problem - a big part of the problem in all of this (the Jammie Thomas verdict wouldn't have happened without it) is that many of attorneys, judges, jurors and even the individuals represented by the attorneys on both sides do not have a lot of knowledge on new and quickly-evolving technology. The nuances of an IP address being able to possibly identify a network but not a computer are lost of them if they don't understand the difference between an individual computer and a network that may have several computers sharing an IP address.
With as many amendments the RIAA has been allowed to make to complaints after filing them, couldn't defendants' replies get such a concession to fix a undetected factual fallacy or two?
But above all, R.B. is right - it would be a lot easier and more financially rewarding for him and others like him to join the RIAA vultures because they have a lot more money than the ordinary people getting targeted with these lawsuits. Without them, the RIAA's tactics of bullying everyone into settlements regardless of what we might or might not have done would be failproof.
I rejected the comments of Anonymous ABC because he or she
(1) suggested that defendant's attorneys should post their draft litigation documents on this site prior to filing them, in order to get input from the community, and
(2) unfairly disparaged and second guessed Jammie Thomas's lawyer.
The only contribution to our discussion which Anonymous ABC has made is to lend support to those who say that "anonymous" posters should be banned.
Mr. Beckerman:
I am not a lawyer, which is perhaps why I don't understand why lawyers don't make their arguments available for comment prior to filing them. Because these filings become public records after filing, and the opposition can only respond to the actual arguments in the final filing made, I would think it would be analogous to having a manuscript proofed for errors prior to submission, although in this case the checking would be to have the technical facts straight, and any lapses in logic caught beforehand. After all, computer scientists are nearly never lawyers, nor is the reverse true. And I doubt many computer scientists are currently on the Riaa's side in this.
TM
I guess I'm just crazy, Terrance.
Do you think it might have something to do with the fact that the RIAA lawyers read this blog?
Mr. Beckerman:
In response to your apparent question back to me, I have no doubt that the RIAA lawyers must read this blog. It would be inexcusably sloppy of them to not be performing opposition research, given the overall magnitude of the sum of the cases at hand. However, if you were to tip your hand a couple days early before actually filing, how does that benefit them? As I've said, I'm not a lawyer myself and there may well be nuances to this that escape me, but as I've observed matters, one side files, and then the other responds to the contents of that filing. Giving them any slightly earlier insight to the eventual filing doesn't seem to present any obvious opportunities for them to short-circuit the process. I'm certain that they must strengthen their own arguments when weaknesses are exposed here. Even so, the benefit of gaining the information of many to oppose those few must outweigh any advantage to them, given that you continue to allow public comments to your blog. You could, after all, post filings without allowing public comments, and privately accept e-mail suggestions on how to strengthen your side without sharing this information with the RIAA itself. The most seemingly obvious reasons to not present arguments for critical review ahead of filing would seem to be, either not enough time to include this element into the preparation of these filings, or the appearance/perception of not seeming fully prepared as a lawyer since outside help is being solicited. There might well be additional reasons not apparent to myself. It is only my own opinion that rather than post actual filings after the fact and have flaws and questions raised here at that time, that some of these issues would better have been dealt with ahead of the actual filing. After all, once filed, it cannot be changed or improved, and arguments that are forgotten at filing time may prove difficult, or impossible, to raise further into the case. I'll stick to my business and let you run yours as you see best. It was only that I've long wondered why this isn't being done already when cases wander into technical areas unfamiliar to lawyers and the courts, and your comments on a rejected post brought those to the forefront for me. My best regards.
TM
It is not an option for an attorney at law to reveal confidential information, such as drafts of legal documents, to the public.
Mr. Beckerman:
Okay, that makes perfect sense. Sorry for all the useless questions.
TM
So, since you cannot post drafts for review a couple of days early, I guess you really need a technical expert to review some of the stuff. Of course I know your client likely cannot afford this review.
Is posting of a draft permitted if the client consents? I would think the overall technical feedback you would receive would improve your pleadings more than the couple of days of early disclosure of pleadings to the Plaintiff would hurt.
Maybe not disclosing the entire draft, but sections relating to technicial issues might be considered instead.
Maybe not normal to do this, but might help your client out with any technical errors that might slip in, and get quite a bit of good advice on these issues.
Albert
It strikes me that, as much of the material the RIAA counsels submit in their briefings is copied and pasted across all cases, there may be a similar case for us assembling our own boiler plate refutations of many of the main factual and technical errors in their submissions. These could legitimately be posted here and made available to all defense counsels.
Dave
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