Recording Industry vs The People

The Magistrate has denied the RIAA's motion, in UMG v. Lindor, to compel Ms. Lindor's son to turn over his desktop computer, reasoning that

Plaintiffs have offered little more than speculation to support their request for an inspection of Mr. Raymond's desktop computer, based on than his family relationship to the defendant, the proximity of his house to the defendant's house, and his determined defense of his mother in this case. That is not enough. On the record before me, plaintiffs have provided scant basis to authorize an inspection of Mr. Raymond's desktop computer.

The Court did, however, provide that the RIAA could take a limited deposition of Mr. Raymond to ascertain whether he had any other devices in his custody, possession, or control at the time the screenshot was taken, and whether he'd hooked them up to his mother's internet connection:

March 30, 2007, Order Denying RIAA Motion to Compel*

* Document published online at Internet Law & Regulation

Mr. Raymond is represented by Richard A. Altman.

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In a White Plains, NY, case, Lava v. Amurao, the defendant has filed papers opposing the RIAA's motion to dismiss his counterclaims for (a) a declaratory judgment of non-infringement, and (b) copyright misuse:

Memorandum of Law in Opposition to Plaintiffs' Motion to Dismiss Counterclaims*

Mr. Amurao is represented by Richard A. Altman, of Manhattan.

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

A very strange mystery document has turned up in Elektra v. Santangelo. This is the case in which Judge McMahon denied the RIAA's motion to dismiss "without prejudice", and said that it either had to prepare for trial and go to the pretrial conference on April 13th, or it had to enter into a stipulation of dismissal with prejudice no later than April 1st.

According to the court records the following bizarre mystery document was filed by the RIAA late Friday:

Mystery Document (Stipulation of Dismissal Signed by Richard L. Gabriel only and filed as a "Notice")

The lawyers among you will understand how bizarre this is. For the non-lawyers:

1. After the answer has been filed (which happened a long long time ago in this case) the only way a stipulation of dismissal can be entered into is if all parties sign it; this document was not signed by defendant's lawyer;

and

2. There is no such thing as electronic filing of a stipulation in this Court; any stipulation is supposed to be submitted to the Stipulations and Orders clerk by email for submission to the Judge.

* Document published online at Internet Law & Regulation

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The RIAA has made a motion to dismiss the defendant's counterclaims in Atlantic v. Boggs, in Corpus Christi, Texas.

Plaintiffs' Motion to Dismiss Counterclaims*

Mr. Boggs is represented by Charles Rogers of Conley Rose, based in Houston, Texas.

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Magistrate Robert M. Levy has ruled in UMG v. Lindor that the RIAA does not have to turn over its agreements with MediaSentry.

The Magistrate made no findings as to privilege or confidentiality, but held that the documents were irrelevant:

March 30, 2007, Granting RIAA Motion for Protective Order*

Ms. Lindor's attorneys filed an objection to the Magistrate Judge's order:

Defendant's Notice of Objection to March 30, 2007, Granting RIAA Motion for Protective Order Concerning MediaSentry agreements*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

George Dennis, the defendant in Elektra v. Dennis, in Jackson, Mississippi, has moved the dismiss the complaint, or in the alternative for summary judgment dismissing the case:

Motion to Dismiss Complaint or for Summary Judgment Dismissing Complaint*
Defendant's Brief in Support of Motion to Dismiss Complaint or for Summary Judgment Dismissing Complaint*
Defendant's Affidavit in Support of Summary Judgment Dismissing Complaint*

The defendant is represented by Karen Spencer, of Spencer & Spencer, of Jackson, Mississippi.

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

In Warner v. Stubbs, in Oklahoma, the RIAA had moved for an extension of time in which to file its reply to Ms. Stubbs's counterclaim.

Thereafter it made a renewal motion, asking the Court to change its prior ruling on the RIAA's motion to dismiss counterclaim.

The Court has held that the making of the renewal motion has mooted the RIAA's request for more time to file a reply.

March 30, 2007, Order Denying Motion for Extension as Moot*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Legal publisher Law.Com reports in its Legal Blog Watch:

RIAA Faces Some Pushback

For a while, it seemed that the RIAA's strategy of suing large numbers of people who'd allegedly downloaded music illegally was working. Rather than spend money to fight the suits, many found it more financially favorable to settle. But this week, RIAA has received some resistance in two matters. In one, it eventually decided to back down.

First, Al Nye the Lawyer Guy reports here that the University of Maine has told the RIAA to "take a hike" in response to the group's demand that the school turn over names of students who allegedly downloaded copyrighted materials. And this post at Legal Pad tips us off to a powerful letter that a Visalia, Calif., solo "slung against the record-industry goliath," causing it to back down.


Complete article

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The University of Wisconsin at Milwaukee has joined its sister school, University of Wisconsin in Madison, and also the University of Maine, in refusing to send along the RIAA's collection letters. Here is a copy of the letter the University's students received from the school:

Encl: Illegal File Sharing at UWM

SUBJECT: Illegal File Sharing at UWM

This announcement is being sent to all known UWM faculty, staff and
student e-mail addresses.

The Recording Industry Association of America (RIAA) has recently
increased its threat of lawsuits against students and others who engage
in illegal digital file sharing. This is in response to perceived
violations of the Digital Millennium Copyright Act of 1998, which
specifically addresses copyright infringement of digital materials such
as music, movies and software.

As you may know from recent press reports, the RIAA is now targeting
individuals who live in university residence halls or use university
computing resources. Because the RIAA can only identify violators by
their ISP (Internet Service Provider) identifier, they are sending
letters to universities requesting that these letters be forwarded to
students, faculty and staff.

The RIAA notified UWM of its plans to send settlement proposal letters
for individuals on the UWM campus whom they believe are guilty of
violating federal copyright laws. These letters request that a monetary
settlement be made by the violator in lieu of court action by the RIAA.

After consultation with UW System, our own legal counsel and with our
understanding of federal law, UWM has decided that these letters will
not be passed on to individuals. However, should RIAA send UWM a lawful
subpoena for users’ account information, UWM will comply.

It is important to be aware of copyright law and avoid illegal P2P
(peer-to-peer) file sharing.

For more information, visit the UWM Information Security Web Site at
https://www3.uwm.edu/imt/security/index.cfm.

If you have questions, please e-mail dmca@uwm.edu.

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The RIAA's latest attempt to extend the discovery deadline for "reasonableness" of defendant's attorneys fees in Capitol v. Foster has been rejected by the Court.

Judge Lee R. West ordered the RIAA to produce its expert reports by April 9th at 10 AM, or else be precluded from introducing any expert reports:

March 29, 2007, Order Granting Motion to Compel*

The judge noted in a footnote that the RIAA's lawyers were operating under an "apparent misunderstanding of the Court's discovery orders".

The depositions of the RIAA's "expert" on attorneys fees is scheduled for April 11th.

The deadline for discovery on the "attorneys fees" issue is April 16th.

Ms. Foster is represented by Marilyn Barringer-Thomson of Oklahoma City.

* Document published online at Internet Law & Regulation

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Interesting opinion piece on AzOz:

Before You Pay the RIAA...

By George Ziemann -- March 24, 2007

There's a reason the RIAA is offering a "discount" on this year's series of extortion demands from college students. They want to get as many chumps as possible to roll over and fork up cash and they need for you to do it right away because their window of opportunity is closing. The jig is almost up.

A couple of days ago, there were two Slashdot articles which appeared, concerning two separate cases wherein the RIAA is about to be spanked -- Deborah Foster and Patti Santangelo. If you follow the links, pay particular attention to the comments by NewYorkCountryLawyer, which is Ray Beckerman.

Foster already "won" her case in the sense that the RIAA gave up. Foster wasn't going to roll over and she was close to having a trial. Since the RIAA really had no evidence in the first place, they dismissed the case to avoid trying to convince a jury their flimsy version of reality. It was dismissed with prejudice, which means the RIAA failed to prove its case and they can't come back and accuse her of the same offense later.

The judge also ruled that the RIAA had to pay Foster's attorney's fees. When the RIAA saw the bill, they said it was too high. The judge said something to the effect of, "Oh really? How much did you spend?" To this query, the RIAA has responded by a) ignoring it for a while, b) telling the judge he made a mistake in awarding attorney fees in the first place, and c) offered their billing records as long as the court agrees they're top secret and no one can look at them.

Complete article.

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In Warner v. Stubbs, where the RIAA previously was granted permission to dismiss its claim "without prejudice" (meaning it can sue again on the same claim), the RIAA has now changed its mind and stated that it now "covenants not to sue Ms. Stubbs", and is asking the Court to dismiss Ms. Stubbs's counterclaim for a declaratory judgment and attorneys fees.

RIAA Renewal Motion Containing Covenant Not to Sue and Asking for Dismissal of Counterclaims*

* Document published online at Internet Law & Regulation

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In Capitol v. Foster, where the RIAA has asked for discovery into the "reasonableness" of defendant's fees, the RIAA has indicated that it will be using an 'expert witness' on the attorneys fees issue, but has never (a) identified the witness, or (b) produced the requisite "expert witness report" required by the Federal Rules of Civil Procedure, thus preventing defendant from requesting documents and a deposition from the expert. Defendant, on the other hand, produced her expert report last year.

In view of the imminent deadline for the completion of discovery on the attorneys fees issue -- April 16th -- Ms. Foster's lawyer, Marilyn Barringer-Thomson, has filed a motion to either (a) preclude plaintiffs from calling an expert witness, or (b) direct the plaintiffs to produce a report, document discovery, and the witness for a deposition:

Defendant's Motion to (a) Preclude Expert Testimony by Plaintiffs or (b) Compel Expert Discovery*
RIAA Opposition Papers*
Defendant's Motion to Strike RIAA Opposition Papers*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Subsequent to the March 26th oral argument in UMG v. Lindor over the RIAA's motion to compel Ms. Lindor's son, who lives 4 miles away from her, and is not a party to the action, to turn over his computer, the RIAA lawyer sent a letter to Magistrate Levy. Mr. Raymond's attorney, Richard A. Altman, questioned the motivations of the RIAA lawyer in sending the letter:

March 27, 2007, Letter of Richard L. Gabriel to Magistrate Levy*
March 27, 2007, Letter of Richard A. Altman to Magistrate Levy*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

In Atlantic v. Andersen, where the RIAA was insisting on taking the deposition of a 10-year-old child face-to-face, and refused to agree that the deposition would be by telephone or videoconference only, the Court ruled against the RIAA, holding that the deposition of the child must be by telephone or videoconference only.

The March 27th docket entry states:

Record of Order by Judge Ashmanskas - GRANTING defendant's motion for limitations of depositions of Tanya Andersen and Kylee Andersen with the condition, as requested by plaintiffs, that defendant may not take a break from her deposition when a question is pending.

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Following the lead of the University of Wisconsin, now the University of Maine has similarly refused to forward the RIAA's collection letters. See this report from The Maine Campus:

UMS refuses to hand student info to RIAA
Tony Reaves
Issue date: 3/26/07 Section: News

The University of Maine System has refused a request from the Recording Industry Association of America to produce names of students who allegedly downloaded copyrighted materials.

The system has also opted not to forward the RIAA's pre-litigation letters offering settlements to those students, although the schools those students attend will inform their students of the letters and give them a chance to pick up the letters if they so choose.

At the University of Maine, students with pending RIAA lawsuits were told on Friday.

"It's not the university's role to, in effect, serve papers on our students for another party," John Diamond, spokesman for the university system, said of the decision.

****

Diamond said the RIAA's request for student information asks the system to violate the Family Educational Rights and Privacy Act, which bars the UMS from divulging information not considered public.

Complete article

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In SONY v. Merchant in California, after receiving a sternly worded letter from the defendant's lawyer, Merl Ledford III, of Visalia, California, threatening a malicious prosecution lawsuit, the RIAA immediately withdrew its lawsuit:

Notice of Voluntary Dismissal*

The text of the stern letter was as follows:
************************************************************************************

From: Merl Ledford III, Esq. [mailto:m.ledford3@ledfordlaw.net]
Sent: Tuesday, March 27, 2007 1:11 AM
To: Thomas McCarten Kerr, Esq
Cc: Barry Merchant
Subject: Sony BMG et al. v. Merchant Eastern Dist of Cal. Sacramento Branch 2:07-CV-00340-DFL-DAD

Dear Mr. Kerr

Thank you for your letter of March 23, 2007 received in my office today. I did not receive a copy of the letter by PDF although that method of delivery was shown on the letter.

Incorrect Venue and Emotional Distress


The lawsuit filed by your office and your letter arrive at a particularly inappropriate time in Barry and Cathy Merchant's life. Mrs. Merchant left my office after our first meeting to attend to ill father in Colorado. She and Barry Merchant left my office today to attend his funeral. You should advise your clients that they are facing a "thin skull plaintiff" either on a Rule 11 sanctions motion or (upon favorable termination) in a malicious prosecution action. The emotional distress inflicted by your clients' litigation -- filed in Sacramento rather than the Fresno Branch of the Eastern District Court where my clients' live in violation of the Rules of Court -- has been extreme.

Your client should carefully consider whether it has probable cause to proceed at this point. Mr. Merchant's hard drive is available for immediate, carefully supervised inspection by your client; a carbon copy of the drive has been made by technicians to insure that the evidence is well backed-up.

At the time of inspection, we will expect your clients to be prepared to dismiss all claims with prejudice. The pleadings may be e-filed from my office the same day. Although dismissal will not avoid your clients' exposure to attorneys' fees under the Copyright Act, it will certainly mitigate damages to Mr. and Mrs. Merchant and the possibility of escalating the issues by counter-claim on federal grounds that have been successfully pleaded in other states as well as on pendant California claims that have, thus far, tempered your clients' California zeal for litigating in this state.

Selling a Settlement and the AOL Subpoena

I have evidence of one letter dated June 5, 2005 from an attorney in your firm who is not licensed to practice law in California to Mr. Merchant claiming copyright infringement and demanding settlement negotiations. There is no other record of any kind.

Please provide copies of other correspondence that your clients claim was received by Mr. Merchant (whether by AOL or others) demanding settlement. Is it the same AOL letter that your clients' represented was sent by AOL to a woman with MS who lives in the New York borough of Queens. See Elektra v. Schwartz, Cent Dist NY, 1:06-cv-03533-DGT-RML, Document 21). When the letter was finally produced, after objection and delay, it became clear that its contents had been misrepresented to the Court. (How anyone from the former Gray Cary firm ever pull such a stunt stuns me; it used to be such a fine office.)

Also, please provide my office with copies of all telephone records of contacts your clients claim to have had with Mr. or Mrs. Merchant, and (with respect to your discussion of the AOL subpoena), proofs of service of Notice of Opportunity to Appear and Oppose RIAA's subpoena, a copy of the subpoena, and all of the parties' pleadings in support and opposition to issuance of the subpoena. In the event the AOL litigation named Doe defendants in violation of the Federal Rules of Civil Procedure and obtained any information regarding Mr. Merchant's long-standing without appropriate notice or in violation of California consumer privacy laws, I will request a preclusion order barring any use or derivative use of any information so obtained. See, e.g., Fonovisa v. Does 1-41, W.D. Texas, Austin Div. 04-CA-550 LY.

Independent Factual Investigation and Probable Cause to Sue: Background

Your office has a duty of good faith independent factual investigation and legal research sufficient to support a finding of probable cause to sue.

In Williams v. Coombs (1986) 179 Cal. App. 3d 626, the California Court of Appeal held that attorneys who participate in the filing or maintenance of litigation without probable cause are personally liable for malicious prosecution of a civil action.

In Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, the California Supreme Court narrowed Williams, holding that a trial court may not delegate the ultimate determination of probable cause to the jury; it held that the question was one of law which must be resolved by the Court. Id. at 876. The Sheldon decision specifically disapproved of dicta from Tool Research & Engineering Corp. v. Henigson (1975) 46 Cal. App. 3d 675, at 683, that the attorney must have a "subjective belief" in the tenability of his or her client's claim in order to avoid malicious prosecution liability. Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d at 881. It nevertheless "strongly emphasized" that its conclusion "does not by any means suggest that an attorney who institutes an action which he does not believe is legally tenable is free from the risk of liability" because the lawyer's subjective belief "would clearly be relevant to the question of malice." Id. (emphasis supplied); see also Slater v. Durchfort (1995) 35 Cal. App. 4th 1718, 1724.

The Shelton Court also disapproved of Tool Research dicta suggesting that lack of probable cause may be proven "simply by showing that [the attorney] failed to perform reasonable legal research or factual investigation before filing a claim." Id. at 882. Rather, the Shelton Court held that such lack of diligence is relevant on the issue of malice. Id. The Shelton Court specifically disapproved of the Williams decision's apparent use of lack of investigation to prove lack of probable cause, although it fully endorsed the Williams analysis of the tort of malicious prosecution itself. Id. at 882-883 (footnote 9).

Although malicious prosecution was once characterized as a “disfavored action,” it has been somewhat expanded in recent years in apparent frustration with continued "shotgun" lawyering tactics by Plaintiff's counsel. In Crowley v. Katleman (1994) 8 Cal. 4th 666, the California Supreme Court upheld a malicious prosecution complaint where only five of six underlying causes of action were alleged to have been brought without probable cause. The court specifically rejected the defendant's claim that because one of the original causes of action was based on probable cause, the entire complaint was made immune from malicious prosecution liability. Id. at 694-695. Similarly, in Zamos v. Stroud (2004) 32 Cal.4th 1297b, the Court endorsed an action against an anti-SLAPP motion where a litigant’s counsel filed and maintained causes of action without probable cause.

Independent Factual Investigation and Probable Cause to Sue: Lack of Probable Cause

I know of no facts on which a good faith finding of probable cause by either your clients or your law firm could be based to support a claim for relief against Mr. Merchant.

It is well documented that your clients' reliance on MediaSecurity (an admitted "non-expert;" UMG v. Lidor, East Dist NY No. 1:05-cv-01095-DGT-RML) and its overall method of identifying P2P copyright infringers is wholly unreliable and inadequate. See, e.g., February 23, 2007, deposition of the RIAA's expert. http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_070223JacobsonDepositionTranscript. See also expert witness statement of Prof. Pouwelse and Dr. Sips: http://www.ilrweb.com/viewILRPDF.asp filename=foundation_upcnederland_witnessdeclaration and amicus curiae brief of the ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma, in Capitol v. Foster decrying the RIAA's "driftnet" litigation strategy: http://www.ilrweb.com/viewILRPDF.asp?filename=capitol_foster_amicus.

Such facts were known or reasonably should have been known to you and your law firm before suit against Mr. Merchant was filed. Thus, unless you and your office undertook additional independent investigation to identify Mr. Merchant as a person who actually has engaged in copyright infringement by illegal downloading, good faith basis for a Rule 11-compliant probable cause finding consistent with the Williams line of cases cited above simply did not exist to file the action. . . and does not exist now for it to be maintained.

Your clients apparently argue that Mr. Merchant's failure to respond to "settlement" demands justifies their lawsuit without other basis on which a finding of probable cause to sue could be claimed. You devoted the bulk of your letter advocating that position. As you know, however, that posture is repugnant to both Rule 408, Fed.Rul.Evid. and California Evidence Code §§ 1152 and 1154.

The Evidence Code sections are quite clear: settlement negotiations of all kinds may not be used to prove the validity of any claim or defense. Mr. Merchant has and had no more duty to respond to attempts to "sell" him one of your clients' boilerplate, non-negotiable $3750 settlements than he has to return cold calls from pushy life insurance salespeople. If your client (and your law firm?) are seeking probable cause shelter in a settlement negotiations house of straw (as suggested by your March 23 letter), all of you should consider the prevailing winds of the Evidence Code before making yourselves too comfortable. Straw will burn.

Your client take the position that my middle-aged, conservative clients should speculate regarding the identity of persons your clients' claim used their AOL account to download pornographic-lyric gangsta rap tracks as predicate to possible case resolution. In an age of Wintel-virus created bot-farms, spoofs, and easily cracked WEP encrypted wireless home networks (among other easy hacks), the only tech-savvy response to such a request is, "You've got to be kidding." The extensive press that has been generated over computer security (and the insecurity of Windows XP and its predecessors) underscores the complete absence of facts on which probable cause to sue my clients could be established and your clients' willingness (even insistence) that others be implicated in Big Music's speculative, "driftnet" litigation tactics. Sorry: Mr. Merchant cannot and will not expose himself to still more litigation by speculating.

Settlement Option

It is not too late to correct your clients' (and your law firm's) mistakes.

Mr. and Mrs. Merchant's emotional condition puts a premium on immediate case resolution. Thus, although I generally do not make opening legitimate offers as defense counsel, the clients' non-monetary interests and their probability of recovering their fees and costs in this matter (at a minimum) suggest that a defense settlement offer would not be inappropriate. Therefore:

My clients are willing to accept dismissal of the litigation in exchange for

1. Payment of Mr. Merchant's reasonable fees and costs including retainer of $6,880.25. The payment represents good value considering what your own firm's billings will have been to date and use of those billing records as the loadstar rate for Mr. Merchant's award. See Capitol Record v. Foster, Western Dist. Okla No. 5:04-cv-1569-W, Docment 182 filed 3-15-07).

2. Apology on your firm's letterhead by your supervising partner for inappropriately filing and maintaining an action against Mr. Merchant without probable cause and for the emotional hardship that such litigation caused; and

3. Execution of a mutual general release of all claims in my office's usual form. The RIAA form of release I have seen will not be used. It is my practice in these kinds of cases to require that the plaintiffs indemnity my clients against claims by third parties as part of my general release language. (E.g., your clients sue a site for posting guitar tabs to copyrighted music; my client visits the site, read the tabs, plays them on his guitar, and get sued by way of cross-claim by the guitar tab site). My form of release also anticipates class action litigation that is in the works at several SoCal class-action offices on RICO, Unfair Practices Act (Bus & Prof. Code §§17200 et seq.) and other grounds against RIAA, MediaSentry, and all of your named clients in the Merchant action. My clients will agree to opt out of any such litigation; the release language is tailored to your clients are not giving up any defenses they might otherwise have to the class claims.

4. Confidentiality: It is my general practice to disfavor confidential settlements. Under the circumstances, and so long as your clients are prompt and candid in dealing with their mistaken, misplaced lawsuit, I would consider a reasonable confidentiality provision. Again, quick response, full payment, and immediate dismissal will allow confidentiality as an option.

The authorized settlement offer expressed in the preceding paragraphs of this email (and confirmed in staff-proofed letter format to be sent by fax and US Mail tomorrow; sorry for typos that are an unfortunate part of any quick-response email) may be accepted by signing a copy of this email and returning it to my office by fax no later than the close of business on Friday, March 30, 2007. It is intended to be presented to your clients as written in complete context of this email (and text-corrected letter to follow) in accordance with Rule 3-510, CRPC. It is the best offer that will be made in this litigation based on the facts and circumstances as they are known at this time. Substantial discovery, investigation, and exchange of information remains that could substantially alter the settlement position of the parties to the betterment of either side in ways that cannot now be responsibly predicted. The case settlement value will, however, trend upward the longer I have to work on it. And the emotional distress damages for willfully filing and thereafter maintaining claims for relief without probable cause will only increase as the matter drags on.

The offer is made pursuant to California Civil Code section 47 and in accordance with Rule 408, Fed.Rul.Evid. and California Evidence Code §§ 1152 and 1154 for the sole purpose of settling doubtful and disputed claims by and between the parties. Neither the fact that the offer was made, nor its acceptance, nor any statement made in the course of settlement negotiations shall be admissible to prove the strength or weakness of any claim, counter- or cross-claim, or defense raised or that could be raised by or between the parties regarding the subject matter of their dispute.

Procedural Issues

Your reminder about preservation of evidence, of course, cuts both ways. Since my client's hard drive completely exculpates him, functionally compels dismissal, and opens the door to substantial recovery, he is doing everything in his power to preserve and protect his evidence. In our part of the world, that is a mid-six to low seven figure piece of computer gear.

Procedurally, we need to address how best to move the case to the Fresno Branch so you can enjoy our new Courthouse and avoid Judge Levi's wrath for filing in the wrong court. (Senior Judge Bob Coyle was responsible for building both our new facility and the District Court building in Sacramento; and, although neither building is as grand as Judge Manny Real's showpiece in Santa Ana, the Fresno Court is not only nicer than Sacramento but also one of the top three court facilities ever I've enjoyed practicing in.) Handling the issue by stipulation and order would probably be the most simple way to move the file. We do that routinely in PACA litigation although I am open to suggestions if you prefer to handle it differently

Once the case is moved to the Fresno Branch, your clients should consider cleaning up their complaint. The FRCP and collateral estoppel from other RIAA law and motion matters require much greater specificity in pleading than your clients provided in the complaint I reviewed. Dates of the alleged downloads, which plaintiff (or affiliate) holds which copyright to which track, etc. must be specifically pleaded and proven. You are as familiar as I am with the results in other cases where RIAA's general allegations have been challenged. Let's get over that hurdle without unnecessary law and motion practice.

We should also discuss how quickly you can get your tech people here to do their hard drive inspection. Again, I would be happy to send the airplane to either Butler at SFO or Kaiser at Oakland for roundtrip convenience of you and your clients' tech people. (Oakland is usually faster for me from Civic Center; Kaiser has a shuttle from Bart that beats SFO by about 20 minutes each way most of the time.)

Because your techs will want to do a full data recovery scan to pick up any "negatives" left behind from erased files, I suggest we create a mirror image on an unformatted hard drive purchased commercially in everyone's presence for that purpose. Other RIAA cases have handled the issue by Stipulation and Order although hopefully we can agree on the procedure without that sort of formality.

Once your tech people have confirmed that none of the titles set forth in your clients' complaint (or any other infringements) are or ever were on the drive, you will have irrefutable confirmation of the information provided to you by my office. From there, it should be a short trip to dismissal even if it means getting our clients to mediate Mr. Merchant's positive claims in the absence of an appropriate settlement.

Concluding Remarks and

Thank you for your continued professional courtesy. It is no fun becoming a litigation target as the result of your clients' widely-discredited tactics. Although I have a client to represent, I will do everything I can to keep that aspect of the case at the lowest level possible. You have a hard-nosed client to represent too; and I completely respect that.

Merl Ledford III

An Email Transmission of
LEDFORD LAW CORPORATION
805 West Oak Avenue
Visalia CA 93291-6033
Vox 559.627.2710/Fax 559.627.0717
Web Site: LedfordLaw.net
"Team-Based Transactions & Business Litigation in State and Federal Courts"

* Document published online at Internet Law & Regulation

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Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

I recently came across this letter in my mailbox. It was written by California attorney Merl Ledford III, of Visalia, California, to the RIAA's lawyer. Thought my readers might enjoy it:

*****************************************

From: Merl Ledford III, Esq. [mailto:m.ledford3@ledfordlaw.net]
Sent: Tuesday, March 27, 2007 1:11 AM
To: Thomas McCarten Kerr, Esq
Cc: Barry Merchant
Subject: Sony BMG et al. v. Merchant Eastern Dist of Cal. Sacramento Branch 2:07-CV-00340-DFL-DAD

Dear Mr. Kerr

Thank you for your letter of March 23, 2007 received in my office today. I did not receive a copy of the letter by PDF although that method of delivery was shown on the letter.

Incorrect Venue and Emotional Distress


The lawsuit filed by your office and your letter arrive at a particularly inappropriate time in Barry and Cathy Merchant's life. Mrs. Merchant left my office after our first meeting to attend to ill father in Colorado. She and Barry Merchant left my office today to attend his funeral. You should advise your clients that they are facing a "thin skull plaintiff" either on a Rule 11 sanctions motion or (upon favorable termination) in a malicious prosecution action. The emotional distress inflicted by your clients' litigation -- filed in Sacramento rather than the Fresno Branch of the Eastern District Court where my clients' live in violation of the Rules of Court -- has been extreme.

Your client should carefully consider whether it has probable cause to proceed at this point. Mr. Merchant's hard drive is available for immediate, carefully supervised inspection by your client; a carbon copy of the drive has been made by technicians to insure that the evidence is well backed-up.

At the time of inspection, we will expect your clients to be prepared to dismiss all claims with prejudice. The pleadings may be e-filed from my office the same day. Although dismissal will not avoid your clients' exposure to attorneys' fees under the Copyright Act, it will certainly mitigate damages to Mr. and Mrs. Merchant and the possibility of escalating the issues by counter-claim on federal grounds that have been successfully pleaded in other states as well as on pendant California claims that have, thus far, tempered your clients' California zeal for litigating in this state.

Selling a Settlement and the AOL Subpoena

I have evidence of one letter dated June 5, 2005 from an attorney in your firm who is not licensed to practice law in California to Mr. Merchant claiming copyright infringement and demanding settlement negotiations. There is no other record of any kind.

Please provide copies of other correspondence that your clients claim was received by Mr. Merchant (whether by AOL or others) demanding settlement. Is it the same AOL letter that your clients' represented was sent by AOL to a woman with MS who lives in the New York borough of Queens. See Elektra v. Schwartz, Cent Dist NY, 1:06-cv-03533-DGT-RML, Document 21). When the letter was finally produced, after objection and delay, it became clear that its contents had been misrepresented to the Court. (How anyone from the former Gray Cary firm ever pull such a stunt stuns me; it used to be such a fine office.)

Also, please provide my office with copies of all telephone records of contacts your clients claim to have had with Mr. or Mrs. Merchant, and (with respect to your discussion of the AOL subpoena), proofs of service of Notice of Opportunity to Appear and Oppose RIAA's subpoena, a copy of the subpoena, and all of the parties' pleadings in support and opposition to issuance of the subpoena. In the event the AOL litigation named Doe defendants in violation of the Federal Rules of Civil Procedure and obtained any information regarding Mr. Merchant's long-standing without appropriate notice or in violation of California consumer privacy laws, I will request a preclusion order barring any use or derivative use of any information so obtained. See, e.g., Fonovisa v. Does 1-41, W.D. Texas, Austin Div. 04-CA-550 LY.

Independent Factual Investigation and Probable Cause to Sue: Background

Your office has a duty of good faith independent factual investigation and legal research sufficient to support a finding of probable cause to sue.

In Williams v. Coombs (1986) 179 Cal. App. 3d 626, the California Court of Appeal held that attorneys who participate in the filing or maintenance of litigation without probable cause are personally liable for malicious prosecution of a civil action.

In Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, the California Supreme Court narrowed Williams, holding that a trial court may not delegate the ultimate determination of probable cause to the jury; it held that the question was one of law which must be resolved by the Court. Id. at 876. The Sheldon decision specifically disapproved of dicta from Tool Research & Engineering Corp. v. Henigson (1975) 46 Cal. App. 3d 675, at 683, that the attorney must have a "subjective belief" in the tenability of his or her client's claim in order to avoid malicious prosecution liability. Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d at 881. It nevertheless "strongly emphasized" that its conclusion "does not by any means suggest that an attorney who institutes an action which he does not believe is legally tenable is free from the risk of liability" because the lawyer's subjective belief "would clearly be relevant to the question of malice." Id. (emphasis supplied); see also Slater v. Durchfort (1995) 35 Cal. App. 4th 1718, 1724.

The Shelton Court also disapproved of Tool Research dicta suggesting that lack of probable cause may be proven "simply by showing that [the attorney] failed to perform reasonable legal research or factual investigation before filing a claim." Id. at 882. Rather, the Shelton Court held that such lack of diligence is relevant on the issue of malice. Id. The Shelton Court specifically disapproved of the Williams decision's apparent use of lack of investigation to prove lack of probable cause, although it fully endorsed the Williams analysis of the tort of malicious prosecution itself. Id. at 882-883 (footnote 9).

Although malicious prosecution was once characterized as a “disfavored action,” it has been somewhat expanded in recent years in apparent frustration with continued "shotgun" lawyering tactics by Plaintiff's counsel. In Crowley v. Katleman (1994) 8 Cal. 4th 666, the California Supreme Court upheld a malicious prosecution complaint where only five of six underlying causes of action were alleged to have been brought without probable cause. The court specifically rejected the defendant's claim that because one of the original causes of action was based on probable cause, the entire complaint was made immune from malicious prosecution liability. Id. at 694-695. Similarly, in Zamos v. Stroud (2004) 32 Cal.4th 1297b, the Court endorsed an action against an anti-SLAPP motion where a litigant’s counsel filed and maintained causes of action without probable cause.

Independent Factual Investigation and Probable Cause to Sue: Lack of Probable Cause

I know of no facts on which a good faith finding of probable cause by either your clients or your law firm could be based to support a claim for relief against Mr. Merchant.

It is well documented that your clients' reliance on MediaSecurity (an admitted "non-expert;" UMG v. Lidor, East Dist NY No. 1:05-cv-01095-DGT-RML) and its overall method of identifying P2P copyright infringers is wholly unreliable and inadequate. See, e.g., February 23, 2007, deposition of the RIAA's expert. http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_070223JacobsonDepositionTranscript. See also expert witness statement of Prof. Pouwelse and Dr. Sips: http://www.ilrweb.com/viewILRPDF.asp filename=foundation_upcnederland_witnessdeclaration and amicus curiae brief of the ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma, in Capitol v. Foster decrying the RIAA's "driftnet" litigation strategy: http://www.ilrweb.com/viewILRPDF.asp?filename=capitol_foster_amicus.

Such facts were known or reasonably should have been known to you and your law firm before suit against Mr. Merchant was filed. Thus, unless you and your office undertook additional independent investigation to identify Mr. Merchant as a person who actually has engaged in copyright infringement by illegal downloading, good faith basis for a Rule 11-compliant probable cause finding consistent with the Williams line of cases cited above simply did not exist to file the action. . . and does not exist now for it to be maintained.

Your clients apparently argue that Mr. Merchant's failure to respond to "settlement" demands justifies their lawsuit without other basis on which a finding of probable cause to sue could be claimed. You devoted the bulk of your letter advocating that position. As you know, however, that posture is repugnant to both Rule 408, Fed.Rul.Evid. and California Evidence Code §§ 1152 and 1154.

The Evidence Code sections are quite clear: settlement negotiations of all kinds may not be used to prove the validity of any claim or defense. Mr. Merchant has and had no more duty to respond to attempts to "sell" him one of your clients' boilerplate, non-negotiable $3750 settlements than he has to return cold calls from pushy life insurance salespeople. If your client (and your law firm?) are seeking probable cause shelter in a settlement negotiations house of straw (as suggested by your March 23 letter), all of you should consider the prevailing winds of the Evidence Code before making yourselves too comfortable. Straw will burn.

Your client take the position that my middle-aged, conservative clients should speculate regarding the identity of persons your clients' claim used their AOL account to download pornographic-lyric gangsta rap tracks as predicate to possible case resolution. In an age of Wintel-virus created bot-farms, spoofs, and easily cracked WEP encrypted wireless home networks (among other easy hacks), the only tech-savvy response to such a request is, "You've got to be kidding." The extensive press that has been generated over computer security (and the insecurity of Windows XP and its predecessors) underscores the complete absence of facts on which probable cause to sue my clients could be established and your clients' willingness (even insistence) that others be implicated in Big Music's speculative, "driftnet" litigation tactics. Sorry: Mr. Merchant cannot and will not expose himself to still more litigation by speculating.

Settlement Option

It is not too late to correct your clients' (and your law firm's) mistakes.

Mr. and Mrs. Merchant's emotional condition puts a premium on immediate case resolution. Thus, although I generally do not make opening legitimate offers as defense counsel, the clients' non-monetary interests and their probability of recovering their fees and costs in this matter (at a minimum) suggest that a defense settlement offer would not be inappropriate. Therefore:

My clients are willing to accept dismissal of the litigation in exchange for

1. Payment of Mr. Merchant's reasonable fees and costs including retainer of $6,880.25. The payment represents good value considering what your own firm's billings will have been to date and use of those billing records as the loadstar rate for Mr. Merchant's award. See Capitol Record v. Foster, Western Dist. Okla No. 5:04-cv-1569-W, Docment 182 filed 3-15-07).

2. Apology on your firm's letterhead by your supervising partner for inappropriately filing and maintaining an action against Mr. Merchant without probable cause and for the emotional hardship that such litigation caused; and

3. Execution of a mutual general release of all claims in my office's usual form. The RIAA form of release I have seen will not be used. It is my practice in these kinds of cases to require that the plaintiffs indemnity my clients against claims by third parties as part of my general release language. (E.g., your clients sue a site for posting guitar tabs to copyrighted music; my client visits the site, read the tabs, plays them on his guitar, and get sued by way of cross-claim by the guitar tab site). My form of release also anticipates class action litigation that is in the works at several SoCal class-action offices on RICO, Unfair Practices Act (Bus & Prof. Code §§17200 et seq.) and other grounds against RIAA, MediaSentry, and all of your named clients in the Merchant action. My clients will agree to opt out of any such litigation; the release language is tailored to your clients are not giving up any defenses they might otherwise have to the class claims.

4. Confidentiality: It is my general practice to disfavor confidential settlements. Under the circumstances, and so long as your clients are prompt and candid in dealing with their mistaken, misplaced lawsuit, I would consider a reasonable confidentiality provision. Again, quick response, full payment, and immediate dismissal will allow confidentiality as an option.

The authorized settlement offer expressed in the preceding paragraphs of this email (and confirmed in staff-proofed letter format to be sent by fax and US Mail tomorrow; sorry for typos that are an unfortunate part of any quick-response email) may be accepted by signing a copy of this email and returning it to my office by fax no later than the close of business on Friday, March 30, 2007. It is intended to be presented to your clients as written in complete context of this email (and text-corrected letter to follow) in accordance with Rule 3-510, CRPC. It is the best offer that will be made in this litigation based on the facts and circumstances as they are known at this time. Substantial discovery, investigation, and exchange of information remains that could substantially alter the settlement position of the parties to the betterment of either side in ways that cannot now be responsibly predicted. The case settlement value will, however, trend upward the longer I have to work on it. And the emotional distress damages for willfully filing and thereafter maintaining claims for relief without probable cause will only increase as the matter drags on.

The offer is made pursuant to California Civil Code section 47 and in accordance with Rule 408, Fed.Rul.Evid. and California Evidence Code §§ 1152 and 1154 for the sole purpose of settling doubtful and disputed claims by and between the parties. Neither the fact that the offer was made, nor its acceptance, nor any statement made in the course of settlement negotiations shall be admissible to prove the strength or weakness of any claim, counter- or cross-claim, or defense raised or that could be raised by or between the parties regarding the subject matter of their dispute.

Procedural Issues

Your reminder about preservation of evidence, of course, cuts both ways. Since my client's hard drive completely exculpates him, functionally compels dismissal, and opens the door to substantial recovery, he is doing everything in his power to preserve and protect his evidence. In our part of the world, that is a mid-six to low seven figure piece of computer gear.

Procedurally, we need to address how best to move the case to the Fresno Branch so you can enjoy our new Courthouse and avoid Judge Levi's wrath for filing in the wrong court. (Senior Judge Bob Coyle was responsible for building both our new facility and the District Court building in Sacramento; and, although neither building is as grand as Judge Manny Real's showpiece in Santa Ana, the Fresno Court is not only nicer than Sacramento but also one of the top three court facilities ever I've enjoyed practicing in.) Handling the issue by stipulation and order would probably be the most simple way to move the file. We do that routinely in PACA litigation although I am open to suggestions if you prefer to handle it differently

Once the case is moved to the Fresno Branch, your clients should consider cleaning up their complaint. The FRCP and collateral estoppel from other RIAA law and motion matters require much greater specificity in pleading than your clients provided in the complaint I reviewed. Dates of the alleged downloads, which plaintiff (or affiliate) holds which copyright to which track, etc. must be specifically pleaded and proven. You are as familiar as I am with the results in other cases where RIAA's general allegations have been challenged. Let's get over that hurdle without unnecessary law and motion practice.

We should also discuss how quickly you can get your tech people here to do their hard drive inspection. Again, I would be happy to send the airplane to either Butler at SFO or Kaiser at Oakland for roundtrip convenience of you and your clients' tech people. (Oakland is usually faster for me from Civic Center; Kaiser has a shuttle from Bart that beats SFO by about 20 minutes each way most of the time.)

Because your techs will want to do a full data recovery scan to pick up any "negatives" left behind from erased files, I suggest we create a mirror image on an unformatted hard drive purchased commercially in everyone's presence for that purpose. Other RIAA cases have handled the issue by Stipulation and Order although hopefully we can agree on the procedure without that sort of formality.

Once your tech people have confirmed that none of the titles set forth in your clients' complaint (or any other infringements) are or ever were on the drive, you will have irrefutable confirmation of the information provided to you by my office. From there, it should be a short trip to dismissal even if it means getting our clients to mediate Mr. Merchant's positive claims in the absence of an appropriate settlement.

Concluding Remarks and

Thank you for your continued professional courtesy. It is no fun becoming a litigation target as the result of your clients' widely-discredited tactics. Although I have a client to represent, I will do everything I can to keep that aspect of the case at the lowest level possible. You have a hard-nosed client to represent too; and I completely respect that.

Merl Ledford III

An Email Transmission of
LEDFORD LAW CORPORATION
805 West Oak Avenue
Visalia CA 93291-6033
Vox 559.627.2710/Fax 559.627.0717
Web Site: LedfordLaw.net
"Team-Based Transactions & Business Litigation in State and Federal Courts"

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Ed. Note. Couldn't help posting this hilarious article from BBSpot:

Thursday, March 22 12:00 AM ET
RIAA Updates Mission Statement to Reflect Priorities
By Brian Briggs

Los Angeles, CA - The RIAA has updated its mission statement from "Our mission is to foster a business and legal climate that supports and promotes our members' creative and financial vitality" to "Our mission is to maximize hatred for the music industry by using creative legal and innovative technological methods which will further destroy our member's creativity and financial vitality." The organization hopes the change will more accurately reflect their long-term goals.

Chairman and CEO of the RIAA Mitch Bainwol said, "This change allows us to focus on our goals of ridding ourselves of annoying artists and consumers completely. The Internet has made this possible. In the days before the Internet only a few artists and industry insiders hated the RIAA, now hatred for the RIAA is at an all-time high."

Complete article

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This report in The Inquirer:

Universities get miffed with RIAA

Piracy witch hunt deemed a waste of time

By Nick Farrell: Friday 23 March 2007, 08:30
THERE ARE GROWING signs that US Universities are getting fed up with RIAA demands that they sort out piracy on campus.

The RIAA has been running a high-profile campaign to get college students that it thinks have been involved in illegal file trading to settle lawsuits against them at a "discount".

The plan depends on the RIAA getting the Universities to identify and turn over the names of offending students so that they can send them the threatening letters.

However it seems that two universities are telling the RIAA to go forth and multiply.

Complete article

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The RIAA is insisting on deposing Tanya Andersen's 10-year-old daughter in Atlantic v. Andersen, in Oregon. The child was 7 years old at the time of the alleged infringement.

The record labels insisting on taking the child's deposition are:
-Atlantic Recording
-Priority Records
-Capitol Records
-UMG Music and
-BMG Music.

RIAA Opposition to Limitation of Depositions*
Ms. Andersen's Response*
Lybeck Declaration*

This is the case in which Ms. Andersen counterclaimed against the RIAA, under Oregon's RICO statute and other laws.

Ms. Andersen is represented by Lory Lybeck of Seattle, Washington.

* Document published online at Internet Law & Regulation

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In Capitol v. Foster, the Court directed the RIAA to turn over its attorney billing records to Ms. Foster's attorneys by March 26th, rejected the RIAA's request that the records be placed under seal, and directed that the documents shall be treated as confidential by Ms. Foster's lawyers pending further order of the Court:

March 22, 2007, Order, Granting Motion to Compel, Rejecting Request to Place Documents Under Seal, and Directing that Documents are Confidential Pending Further Order of the Court*

* Document published online at Internet Law & Regulation

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The RIAA filed opposition papers to the defendant's motion to compel in Capitol v. Foster, arguing that their attorney billing records should be treated as confidential and filed under seal with the Court:

Opposition to Motion to Compel*
RIAA Protective Order Motion*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

The RIAA has filed reply papers in Capitol v. Foster, repeating their argument to the Judge that his prior decision, which directed that Ms. Foster be reimbursed by the RIAA for her reasonable attorneys fees,was "erroneous":

RIAA Reply Papers in Further Support of Reconsideration Motion*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Judge McMahon has denied the RIAA's motion to dismiss its case against Patti Santangelo without prejudice in Elektra v. Santangelo, saying Mrs. Santangelo "is entitled to have her legal status resolved one way or the other."

The judge rejected the RIAA's intimation that Ms. Santangelo had defrauded the Court, saying "Nothing in any papers filed by plaintiffs suggests IN THE SLIGHTEST that Mrs. Santangelo has ever perpetrated any fraud on this court." (capitals in the original).

The judge ruled that either (a) the RIAA must stipulate to discontinue with prejudice no later than April 1st, or (b) the parties must attend the April 13th status conference with a pretrial order in hand:

Order Filed march 21, 2007, Denying Plaintiffs' Motion to Dismiss Without Prejudice*

* Document published online at Internet Law & Regulation

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In Warner v. Stubbs in Oklahoma, where the Court denied the RIAA's motion to dismiss Ms. Stubbs's counterclaims, the RIAA has asked the Court to extend its time to file a reply to the counterclaims:

Motion for extension of time to file reply to counterclaims*

* Document published online at Internet Law & Regulation

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In Capitol v. Foster, defendant has moved for an order compelling compliance with the Court's March 15th order directing the RIAA to turn over its attorneys billing records, in light of the RIAA's statements that it was going to make a new "protective order motion" seeking confidentiality, and file "significant" briefs in support thereof:

Motion to Compel Compliance with March 15th order*

* Document published online at Internet Law & Regulation

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p2pnet.net reports that the RIAA has sent 405 more blackmail letters, adding to its hitlist an additional 23 universities, including Boston University (50 pre-litigation settlement letters), Columbia University (20), Dartmouth College (11), DePaul University (18), Drexel University (20), Ferris State University (17), Ithaca College(20), Purdue University (38), University of California - Berkeley (19), University of California - Los Angeles (21), University of California - Santa Cruz (17), University of Maine system (27), University of Nebraska - Lincoln (25), University of Wisconsin system (66, including the following individual campuses: Eau Claire, Madison, Milwaukee, Parkside, Platteville, Stevens Point, Stout, and Whitewater), Vanderbilt University (20), and Virginia Polytechnic Institute & State University (16). This follows on the heels of the offensive it launched last month targeting 400 students at 13 institutions.

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A new contested case has been brought in Houston, Texas, Atlantic v. DeMassi.

Answer and Counterclaims*
Exhibit A (Original Complaint in Arista v. LimeWire)*
Exhibit B (November 2006 Report to USPTO on Filesharing Programs)*

Ms. DeMassi is represented by Donald Scott Mackenzie of Dallas, Texas.

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

p2pnet.net reports:

University ignores RIAA blackmail

p2pnet.net news:- At least one American university has the courage to stand up for its students, refusing to cave in to blackmail threats being spammed to schools across the US by the Big 4 music cartel's RIAA.

The University of Wisconsin says it won't be a Big 4 copyright cop, or act as their runner in extorting 'settlement' money from students.

RIAA is short for Recording Industry Association of America, but only one of the Big 4, Warner Music, can be said to be American, and even it's run by a Canadian. The other three are EMI (Britain), Vivendi Universal (France) and Sony BMG (Japan and Germany).

They RIAA is trying to terrorize students into become compliant consumers of Big 4 music 'product'.

"The University of Wisconsin went against the national trends Friday by warning students about its policy regarding illegal file sharing but refusing to forward settlement letters to violators from the Recording Industry Association of America," says Nick Penzenstadler in the University of Wisconsin's online Badger Herald.

"These settlement letters are an attempt to short circuit the legal process to rely on universities to be their legal agent," the story quotes Brian Rust, communications manager for the UW Division of Information Technology, as saying.

Complete article

Comment: I am so grateful to the University of Wisconsin for standing up to the RIAA's reign of terror, and call upon all universities who are asked to be henchmen for the RIAA to take a similar stand.
-R.B.

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Special Thanks to Dave Hendricks of the Post Online for bringing this story to my attention.
-R.B.

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The transcript of the oral argument of the RIAA's motion for a protective order arguing that its contracts with MediaSentry are "privileged" in UMG v. Lindor is now available online:

Transcript of November 30, 2006, proceedings*

The only portion of the proceedings that is not available to the public is a "sealed" portion containing an in camera discussion at which just the RIAA's lawyers, the Magistrate, and presumably the Magistrate's staff, were present, and Ms. Lindor's attorney was not present.

Errata: thank you to one of our readers who pointed out that remarks which were made by me (Ray Beckerman) were incorrectly attributed to Richard Gabriel.

* Document published online at Internet Law & Regulation

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Both the plaintiffs' and defendant's motions for summary judgment have been denied in Motown v. DePietro, in the Eastern District of Pennsylvania. Ms. DePietro is appearing pro se.

The Court held:

There are... genuine issues of material fact concerning whether or not Defendant has been misidentified as the infringing user.... Defendant has... supplied the Court with a report from her purported expert. In this report, Defendant's expert offered several theories to explain that, even though Plaintiffs identified a user at Defendant's IP address as the infringer on November 18, 2003, it is possible that Defendant was not the infringing user. At the summary-judgment stage, the Court must accept this report in the light most favorable to Defendant. Doing so, in conjunction with Defendant's repeated denials that she downloaded or distributed the sound recordings at issue in this case, creates a genuine issue of material fact. If Defendant can offer proof at trial that she may not have been the user identified by Plaintiffs, a reasonable jury could find that she is not liable for infringement.

The Court also, held, however, that Ms. DePietro's discarding of her computer, approximately five (5) months after receiving the "Doe letter" informing her that she had been identified as an infringer and instructing her to preserve all related evidence (which was 4 months after the filing of the complaint, and 2 months after being served with the complaint)... and her returning the cable modem to her cable provider... created problems. Her expert had conceded that if these had not been discarded, the plaintiffs could have been able to use them to tell whether Kazaa had ever been installed on the computer, whether the MAC address of the computer and modem matched the MAC address in the cable provider's logs, whether a virus or worm could have been responsible for downloading, and whether defendant had enabled the remote desktop feature on her computer which could allow a third party access to the computer remotely. The Court then invited the RIAA to make a motion for sanctions for spoliation.

The Court also stated, in a footnote, its belief that "making available" is, as the RIAA argues, in and of itself a copyright infringement. (This is the issue that is before the Court in Elektra v. Barker).

February 16, 2007, Order and Decision*
Docket sheet*

* Document published online at Internet Law & Regulation

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In a new contested case in Brooklyn, Arista v. Finkelstein, the defendant has counterclaimed for a declaratory judgment of non-infringement and for damages based on plaintiffs' copyright misuse. The RIAA has filed a request for premotion conference in contemplation of a motion to dismiss both counterclaims.

Answer and Counterclaims*
March 8, 2007, Letter of Richard Guida to Judge Trager*
March 15, 2007, Letter of Richard Altman to Judge Trager*

Mr. Finkelstein is represented by Richard Altman of Manhattan.

* Document published online at Internet Law & Regulation

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The RIAA has been ordered to turn over its attorneys' billing records in Capitol v. Foster by March 26, 2007. The order requires the RIAA to produce the attorneys' time sheets, billing statements, billing records, and costs and expense records. The Court reviewed authorities holding that an opponent's attorneys fees are a relevant factor in determining the reasonableness of attorneys fees, quoting a United States Supreme Court case which held that "a party cannot litigate tenaciously and then be heard to complain about the time necessarily spent by his opponent in response" (footnote 11).

March 15, 2007, Decision and Order Directing Production of RIAA's attorneys' billing records*

* Document published online at Internet Law & Regulation

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The RIAA has now asked for permission to serve reply papers in Capitol v. Foster, to further support its motion asking Judge West to "reconsider" his decision granting Ms. Foster's motion for attorneys fees:

Plaintiffs' Motion for Leave to file Reply*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

In UMG v. Lindor, in response to defendant's papers showing MediaSentry giving opinions in another case and showing the complex computer printouts about which MediaSentry will be testifying in the Lindor case, the RIAA (a) claimed that the opinions were facts rather than opinions, (b) admitted that MediaSentry's processes are proprietary, (c) argued that the printouts Mr. Mizzone made are "raw data", (d) gave their own opinion that the printouts Mr. Mizzone generated prove that there was copyright infringement going on through defendant's internet access account, and (e) complained about Ms. Lindor's counsel's quoting plaintiffs' admissions from other cases.

March 14, 2007, Letter of Richard L. Gabriel (MediaSentry Protective Order Motion)*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

In Capitol v. Foster the RIAA has missed the March 12th deadline for submitting its papers in opposition to Ms. Foster's motion to compel turnover of the RIAA's attorneys' billing records. Ms. Foster has submitted papers advising the judge of the RIAA's default, and requesting an order directing turnover of the documents:

Advisory Regarding RIAA's Default*

After receiving Ms. Foster's "reminder", the RIAA finally did submit opposition papers, two (2) days late.

Opposition to Motion to Compel Turnover of Billing Records*

It remains to be seen whether the Court will accept the late filing.

Ms. Foster is represented by Marilyn Barringer-Thomson of Oklahoma City.

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Judge McMahon has set April 13th as the date for the pre-trial conference in Elektra v. Santangelo:

Notice of Pre-Trial Conference*

The conference is open to the public.

This is the case against Patti Santangelo, which the RIAA has been trying to withdraw "without prejudice".

Ms. Santangelo is represented by Jordan Glass of Valhalla, New York,

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

An excellent article in the Knoxville News Sentinel describes the RIAA's stepped up campaign against Tennesseans, including lawsuits against individuals, and a flurry of letters at the University of Tennessee.

Among other things, the article points out:

-the University's concerns about the genuineness of the RIAA's claims, and
-a lawsuit against a man who's accused of using Kazaa who never heard of Kazaa.

Suing downloaders

UT students face deadline; music industry files suit against Tennesseans

By ANDREW EDER, edera@knews.com
March 14, 2007

As the clock ticks down on a settlement offer to 28 University of Tennessee students, the recording industry has fired another salvo against alleged online music pirates.

Various record labels filed 63 lawsuits nationwide on March 6, including seven in Tennessee, charging users of commercial Internet service providers with downloading and distributing copyrighted music using online file-sharing programs.

The Tennessee lawsuits included one against a Sevierville woman, who could not be reached for comment Tuesday. In all, two were filed in the U.S. District Court in Nashville, two in Memphis, one in Knoxville, one in Winchester and one in Columbia.

The move came following a Feb. 28 announcement by the Recording Industry Association of America, a trade group for the major record labels, that it was targeting university students across the country for potential lawsuits unless they paid a settlement fee, believed to be thousands of dollars. The deadline for students to accept the settlement is Monday.

Complete Article

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The RIAA has now brought suit against a stroke victim in Michigan in Warner v. Paladuk:

Summons in Warner v. Paladuk*

Although the defendant John Paladuk, an employee of C&N Railroad for 36 years, was living in Florida at the time of the alleged copyright infringement, and had notified the RIAA that he had not engaged in any copyright infringement, and despite that the fact that Mr. Paladuk suffered a stroke last year which resulted in complete paralysis of his entire left side and severely impaired speech, rendering him disabled, and despite the fact that his disability check is his sole source of income, the RIAA commenced suit against him on February 27, 2007.

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet
boing boing
AntiMusic
digg
The Consumerist
Punto Informatico (Italian)
Groklaw
PunkNews.org
Intern.De (German)
Slashdot
New York Times Online
zdnet
Disc&Dat

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

In an Oklahoma case, Warner v. Stubbs, Judge Vicki Miles-LaGrange has permitted the RIAA to withdraw its case without prejudice, but denied the RIAA's motion to dismiss Ms. Stubbs's Counterclaim for a Declaratory Judgment of Non-Infringement:

March 13, 2007, Order, Granting So Much of Plaintiffs' Motion as Sought Dismissal of Their Complaint Without Prejudice, Denying So Much of Plaintiff's Motion as Sought Dismissal of Defendant's Counterclaim for a Declaratory Judgment*

This is the case in which the RIAA made its motion to withdraw the day after receiving Ms. Stubbs's answer and counterclaim.

Ms. Stubbs is represented by Marilyn Barringer-Thomson of Oklahoma City.

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

In Capitol v. Foster, Ms. Foster has filed papers opposing the RIAA's motion for the Court to "reconsider" its decision granting Ms. Foster's motion for attorneys fees:

Defendant's Objections to RIAA's "Reconsideration" Motion*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

In UMG v. Lindor, where the RIAA has argued that MediaSentry's "investigator" Tom Mizzone is not an expert witness but a paid fact witness, Ms. Lindor's attorneys have submitted to the Court a declaration by Mr. Mizzone, submitted in another case (Elektra v. Santangelo), where he drew conclusions from a computer printout he had prepared.

March 12, 2007, Letter from Ray Beckerman to Magistrate Robert M. Levy*
Exhibit A-Tom Mizzone declaration in Elektra v. Santangelo*
Exhibit B-Jacobson Deposition Exhibit 6*
Exhibit C-Jacobson Deposition Exhibit 10*
Exhibit D-Jacobson Deposition Exhibit 12 Pages 1-3*
Exhibit E-Jacobson Deposition Exhibit 13*
Exhibit F-Jacobson Deposition Exhibit 14*
Exhibit G-Jacoboson Deposition Exhibit 11 Pages 1-3*
Exhibit H-Oral Argument in Warner v. Does 1-149, Excerpt from Transcript*
Exhibit I-February 23, 2007, Deposition of Dr. Doug Jacobson, Excerpt of Transcript*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

In Elektra v. Santangelo, the RIAA has submitted reply papers arguing that the dismissal should be "without prejudice". Included in the reply papers was a declaration by Tom Mizzone of MediaSentry in which he claims that over a period of ten (10) months he repeatedly sent instant messages to the alleged iMesh user at the exact same IP address:

Reply Declaration of Tom Mizzone of MediaSentry*
Reply Declaration of Richard Gabriel*
Reply Memorandum of Law*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

A new contested case has been started in Corpus Christi, Texas, Atlantic Recording v. James Michael Boggs.

The defendant initially was not represented by a lawyer. The RIAA tried to get a default judgment against him, falsely representing to the Court that he had not appeared, when in fact he had appeared at the Court's initial conference on December 20, 2006.

The Court denied the RIAA's default judgment motion, pointing out to them that, contrary to the RIAA's statements in its motion, the defendant had in fact appeared in the case.

Mr. Boggs is now represented by counsel, Charles Rogers of the Conley Rose law firm in Houston, Texas, and has asserted defenses and counterclaims.

Transcript of December 20, 2006, Court conference*
RIAA Request for Default*
RIAA Motion for Default Judgment*
February 1, 2007, Order, Denying RIAA Motion for Default Judgment*
Answer and Counterclaims*

* Document published online at
Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

In view of the fact that many universities, and probably many ISP's, will soon be facing "John Doe" cases in which the RIAA improperly joins unrelated "John Doe" defendants, we thought this an appropriate juncture to remind lawyers of the Order in federal court in Austin, Texas, in Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053 (W.D. Texas 2004) and 3 other cases, under caption "In re Cases Filed by Recording Companies", which ordered the RIAA to cease and desist from that practice, but which the RIAA has simply ignored for the past 2 1/2 years, just in case anyone's thinking of making a contempt motion:

November 17, 2004, Order, in Fonovisa v. Does 1-41 and 3 other cases under Caption "In re Cases Filed by Recording Companies ordering RIAA plaintiffs to file future cases against one defendant at a time*

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

As you may know, the RIAA has ramped up to sue 50 students
at Ohio University, in Athens, Ohio. The university is located
in southeast Ohio, and the Center for Student
Legal Services, which is affiliated with, but not a part of,
the university, has made an urgent appeal for lawyers located in
Ohio who can advise, and possibly represent, students.

If you, or someone you know, can help, please contact:

Melissa Luna
Staff Attorney
csls_luna@frognet.net
Center for Student Legal Services
50 South Court Street, Suite D
Athens, OH 45701
Phone: 740-594-8093
Fax: 740-592-1495
www.studentlegalrights.org

Commentary & discussion:

The Post Online (Athens, Ohio)
Athens News
Athens News
New York Times
Tech Spot
Chronicle of Higher Education "Wired Campus"

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Notice to college students targeted by RIAA in
recent days

A freelance writer for Rolling Stone magazine is doing one or more stories
on the RIAA's new campaign against college students.

He would like very much to talk to college students who have
received the letters. He wants to do a phone interview by
Friday, March 9th, and will pay all phone expenses.

His name is Steve Knopper. His contact information
is steveknopper@yahoo.com and (303) 433-1325. His
website is http://knopps.com/

He advises that he will protect his confidential sources
but of course "Recording Industry vs. The People" can
make no guarantees, so you will have to establish your
own comfort level in communicating with him.

-R.B.

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

The RIAA's lawyer, Richard Gabriel, has requested more time to prepare his reply papers in support of his motion to dismiss without prejudice in Elektra v. Santangelo on the ground that he is busy writing briefs in Capitol v. Foster and UMG v. Lindor. Ms. Santangelo did not oppose the request, and the Court granted it:

March 6, 2007, Letter of Richard Gabriel, and Memo Endorsed by Judge granting application*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

In Lava v. Amurao in White Plains federal court, the RIAA has moved to dismiss the defendant's counterclaims for (a) a declaratory judgment of non-infringement and (b) copyright misuse:

Plaintiff's Memorandum of Law in Support of Motion to Dismiss Counterclaims*
Exhibit A to Plaintiff's Memorandum of Law in Support of Motion to Dismiss Counterclaims*
Exhibit B to Plaintiff's Memorandum of Law in Support of Motion to Dismiss Counterclaims*

Defendant is represented by Richard A. Altman of Manhattan.

Similar RIAA motions have been denied in Capitol v. Foster in Oklahoma and granted in Interscope v. Duty in Arizona.

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

The RIAA's new "Student Extortion Letters" are now available online. This is part of the big 4 record labels' attempt to get colleges and universities to act as their enforcers and collection agents.

Thanks to "alter_fritz" for the news tip.

Commentary & discussion:

p2pnet.net

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Just to let everyone know that the exhibits to the Jacobson deposition, including the MediaSentry text files, are now online, along with the transcript.

http://recordingindustryvspeople.blogspot.com/2007/03/deposition-of-riaas-expert-available.html

Commentary & discussion:

Slashdot
McGrew Security

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Rae J Schwartz has filed reply papers, in Elektra v. Schwartz, responding to the RIAA's opposition to her motion for appointment of a guardian ad litem, based on her condition resulting from Multiple Sclerosis:

March 2, 2007, Letter of Ray Beckerman to Magistrate Robert M. Levy*
Exhibit A (Docket Report in Priority v. Chan II)*
Exhibit B (February 13, 2006, order in Priority v. Chan II)*
Exhibit C (March 27, 2006, order in Priority v. Chan II)*
Exhibit D (Amicus curiae brief of ACLU, Public Citizen, EFF, AALL, and ACLU-Oklahoma in Capitol v. Foster)*
Exhibit E (February 6, 2007, decision in Capitol v. Foster)*
Exhibit F (Excerpts from transcript of deposition of Dr. Doug Jacobson, UMG v. Lindor, February 23, 2007)*

* Document published online at Internet Law & Regulation

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A new contested case has been brought in Brooklyn federal court, Capitol v. Sitaras:

Answer

Mr. Sitaras is represented by Anastasios Pardalis, of Astoria, Queens, New York, and Joseph D. Novahicka of the Bronx, New York. Mr. Pardalis is the author of legal blog Enemy of the State.

* Document published online at Internet Law & Regulation

Commentary & discussion:

Enemy of the State

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

In Elektra v. Santangelo, Patti Santangelo has filed papers opposing the RIAA's request to be permitted to withdraw the case "without prejudice", and has asked Judge McMahon to either dismiss the case "with prejudice", or let her have her day in court at a jury trial:

Memorandum of Law in Opposition to Motion to Dismiss Without Prejudice, and in Favor of Cross Motion for Dismissal With Prejudice or for Jury Trial*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net

Table of Cases

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The well known Sunday comic strip "Foxtrot" by Bill Amend featured as its subject in the March 4, 2007, edition, the RIAA's lawsuits against single moms, widows, grandmothers, dead people, and children.

.

This comic strip is reproduced here with the gracious permission of its creator, Mr. Bill Amend. We are deeply grateful to Mr. Amend for his permission, and for his concern over this important issue in our society.

For more back issues of FoxTrot, go here.

For the current issue of FoxTrot, go here.

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

First Amended Answer*
April 12, 2006, Expert Witness Report of Dr. Doug Jacobson*
Marie Lindor's Request for Pre-Motion Conference*
RIAA Response*
Defendant's Request for Documents*
Defendant's Interrogatories*
Plaintiffs' Response to Interrogatories and Document Request*
Draft Stipulation for Mirror Imaging Procedure*
June 20, 2006, application to Magistrate Levy*
RIAA Response*
Exhibit A*
Exhibit B*
RIAA Motion to Compel*
Supplement Part 1*
Supplement Part 2*
Supplement Part 3*
Beckerman Reply to RIAA*
Notice of Motion to Amend Answer*
Ty Rogers Affidavit*
Aram Sinnreich Affidavit*
Memorandum of Law*
RIAA Memorandum in Opposition*
Reply Memorandum in Support of Defendant's Motion*
Reply Affidavit in Support of Defendant's Motion*
Stipulation regarding mirror imaging of hard drive*
Order of Magistrate Levy regarding hard drive mirror imaging and certain other discovery matters*
July 28, 2006, Letter of RIAA*
July 28, 2006, Letter of Defendant*
August 1, 2006, Letter of RIAA*
August 1, 2006, Letter of Defendant (Preclusion as to song files plaintiffs failed to produce)*
August 4, 2006, Letter of RIAA (Preclusion)*
August 4, 2006, Letter of Defendant (Preclusion)*
Exhibit - Plaintiffs' Requests for Admissions, October 2005*
Exhibit - Defendant's Response to Plaintiffs' Requests for Admissions, March 2006*
August 6, 2006, Memo Endorsed Order of Magistrate Robert M. Levy*
August 10, 2006, Letter of Ray Beckerman to Magistrate Robert M. Levy (Motion to Compel Depositions of Plaintiffs)*
August 14, 2006, Letter of Richard Gabriel to Magistrate Robert M. Levy*
Exhibit A*
Exhibit B*
August 14, 2006, Letter of Morlan Ty Rogers to Magistrate Robert M. Levy*
Exhibit A*
August 25, 2006, Letter of Richard L. Gabriel, Asking to be in Room at Time of Videoconference*
August 25, 2006, Letter of Ray Beckerman in Opposition*
August 25, 2006, Letter of Morlan Ty Rogers, Requesting Permission to Proceed with February 2, 2006, Summary Judgment Motion*
August 28, 2006, Letter of Ray Beckerman to Magistrate Robert M. Levy (Re: "Privilege" Assertion by RIAA as to Agreements with investigators)*
August 28, 2006, Order of Hon. Robert M. Levy, Magistrate Judge*
August 30, 2006, Letter of Ray Beckerman Requesting Pre-Motion Conference for Summary Judgment Motion and Stay of Discovery During Pendency of Motion*
February 2, 2006, Letter of Morlan Ty Rogers Requesting Pre-Motion Conference for Summary Judgment Motion*
August 30, 2006, Letter of Richard Gabriel Opposing Request Pre-Motion Conference for Summary Judgment Motion and Stay of Discovery During Pendency of Motion, and Requesting Four (4) More Months of Discovery*
Stipulation Filed August 31, 2006, Concerning Confidentiality of Certain Documents*
Transcript of September 7, 2006, deposition of JoAn Cho*
September 8, 2006, Letter to Magistrate*
Document Request Number 4*
Response to Document Request Number 4*
Interrogatory Number 5*
Response to Interrogatory Number 5*
September 13, 2006, Letter of Richard Gabriel*
Transcript of September 7, 2006, Deposition of JoAn Cho, pages 1-3, 30-43*
Notice of Motion (Preclusion - Missing Song Files)*
Affidavit of Morlan Ty Rogers (Preclusion - Missing Song Files)*
Opposition Affidavit of Richard L. Gabriel (Preclusion - Missing Song Files)*
Memorandum of Law in Opposition (Preclusion - Missing Song Files)*
Reply Affidavit of Morlan Ty Rogers (Preclusion - Missing Song Files)*
Reply Memorandum of Law (Preclusion - Missing Song Files)*
Exhibit A (Preclusion - Missing Song Files) (Plaintiffs' Response to Defendant's First Interrogatories)*
Exhibt B (Preclusion - Missing Song Files) (Plaintiffs' Response to Defendant's Followup Interrogatories)*
Notice of Motion for Protective Order (MediaSentry agreements)*
Memorandum of Law*
Declaration of Richard Gabriel*
Exhibit D to Declaration of Richard Gabriel*
Declaration of Bradley Buckles*
Declaration of Ray Beckerman dated October 22, 2006, in opposition to RIAA motion for protective order*
Defendant's Memorandum of Law in opposition to RIAA motion for protective order*
October 23, Letter of Ray Beckerman (Hard Drive Report)*
Attachments to October 23, Letter of Ray Beckerman (Hard Drive Report)*
October 25, Letter of Richard L. Gabriel (Hard Drive Report)*
Attachment to October 25 Letter of Richard M. Gabriel (Hard Drive Report)*
November 2, 2006, Order of Magistrate Judge Robert M. Levy, Denying Defendant's Motion for Discovery Sanctions*
November 9, 2006, Order Granting Leave to Amend Answer to Include Unconstitutionality Defense*
(Alternate link - 2006 WL 3335048)
Second Amended Answer, Filed November 9, 2006*
RIAA Reply Declaration (MediaSentry protective order motion)*
RIAA Reply Memorandum (MediaSentry protective order motion)*
November 21, 2006, Letter of Richard A. Altman to Magistrate Robert M. Levy (Quash Subpoena)*
Attachment to Letter of Richard A. Altman (Subpoena)*
Attachment to Letter of Richard A. Altman (Objections to Subpoena)*
November 22, 2006, Letter of Ray Beckerman Joining in Application of Woody Raymond to Quash Subpoena*
November 22, 2006, Order of Judge David G. Trager referring preclusion motion to Magistrate Judge Robert M. Levy*
November 27, 2006, Letter of Richard L. Gabriel*
November 28, 2006, Letter of Ray Beckerman (Hard Drive Deposition Deadline)*
Attachment (Copy of August 3, 2006, Order)*
November 28, 2006, Letter of Richard L. Gabriel Requesting Mutual Extension of Discovery Cutoff*
November 28, 2006, Letter of Ray Beckerman Responding to RIAA Request*
November 29, 2006, Order Extending Discovery Cutoff to 60 Days After RIAA Produces Hard Drive Report*
November 30, 2006, Docket Entry, Oral Argument of MediaSentry protective order motion, preclusion motion, and Ms. Lindor's son's objections to subpoena*
Transcript of November 30, 2006, proceedings*
December 12, 2006, Letter of Richard L. Gabriel*
Attachment (Direct TV v. Trone, 209 F.R.D. 455, C. D. Cal. 2002)*
December 12, 2006, Letter of Ray Beckerman*
December 12, 2006, Report and Recommendation Denying in Part and Granting in Part Defendant's Motion to Preclude (Preclusion - Missing Song Files)*
Defendant's Objection to Report and Recommendation*
December 13, 2006, Letter of Ray Beckerman (Timetable for Production of Wholesale Download Pricing Documents*
December 14, 2006, Letter of Richard L. Gabriel (Timetable for Production of Wholesale Download Pricing Documents*
December 15, 2006, Letter of Ray Beckerman to Magistrate Robert M. Levy*
Expert Witness Declaration in Foundation v. UPC Nederland*
Court Decision in Foundation v. UPC Nederland*
December 18, 2006, Order of Magistrate Judge Robert M. Levy (Re: Wholesale pricing documents)*
December 19, 2006, Letter of Richard L. Gabriel*
Exhibit A -- portion of December 15, 2006, post from "Recording Industry vs. The People"*
December 19, 2006, Letter of Ray Beckerman*
Exhibit A -- July 13, 2006, Decision of Amsterdam Court of Appeal*
Plaintiffs' Motion to Compel*
Richard Gabriel Declaration in Support of Plaintiffs' Motion to Compel*
Douglas Jacobson Declaration in Support of Plaintiffs' Motion to Compel*
Plaintiffs' Memorandum of Law in Support of Motion to Compel*
December 22, 2006, Order and Decision Adopting Magistrate Judge's Recommendations and Report concerning Defendant's preclusion motion*
December 22, 2006, Notice of Deposition of Plaintiff's Expert Witness Dr. Doug Jacobson and Request for Production of Documents*
December 22, 2006, Letter of Richard A. Altman to Magistrate Judge Robert M. Levy*
December 26, 2006, Letter of Richard L. Gabriel*
December 26, 2006, Letter of Ray Beckerman Objecting to Use of Doug Jacobson materials*
Declaration of Dr. Doug Jacobson*
Curriculum vitae*
December 27, 2006, Letter of Richard A. Altman*
December 27, 2006, Letter of Richard L. Gabriel*
Additional December 27, 2006, Letter of Richard L. Gabriel*
December 28, 2006, Letter of Richard A. Altman*
Supplemental Request for Production of Documents to Dr. Doug Jacobson*
January 2, 2007, Letter of Ray Beckerman to Magistrate Robert M. Levy, calling attention of court to USA v. Ganier, 468 F. 3d 920 (6th Cir. Nov. 15, 2006) (MediaSentry protective order motion)*
January 2, 2007, Letter of Ray Beckerman to Magistrate Levy*
Proposed Order Governing Production of Wholesale Pricing Documents*
January 3, 2007, Letter of Richard L. Gabriel (Disclosure of Wholesale Download Prices)*
Exhibit A to Letter of Richard L. Gabriel*
January 3, 2007, Letter of Ray Beckerman responding to Gabriel letter (Disclosure of Wholesale Download Prices)*
Exhibit A to Letter of Ray Beckerman*
Exhibit B to Letter of Ray Beckerman*
Exhibit C to Letter of Ray Beckerman*
January 4, 2007, Letter of Richard Gabriel*
January 4, 2007, Letter of Ray Beckerman*
February 7, 2007, Declaration of Ray Beckerman*
Exhibit A (February 7, 2007, Order and Decision in Capitol Records v. Debbie Foster)*
February 15, 2007, Order Scheduling Oral Argument*
February 16, 2007, Order of Magistrate Judge Robert M. Levy denying defendant's application for order compelling responses to Interrogatory 5 and Document Request 4*
Memorandum of Law In Opposition to Motion to Compel*
Declaration of Richard A. Altman In Opposition to Motion to Compel*
Affidavit of Woody Raymond In Opposition to Motion to Compel*
Transcript of February 23, 2007, Deposition of RIAA Expert Witness, Dr. Doug Jacobson, in UMG v. Lindor*
Exhibit 1 (Press Release)*
Exhibit 2 (Press Release 4/21/04)*
Exhibit 3 (Article 4/19/04)*
Exhibit 4 (Article 4/21/04)*
Exhibit 5 (Article 3/3/04)*
Exhibit 6 ("DownloadData" text file from MediaSentry)*
Exhibit 7 ("Kazaa Overlay" Study by Ross, Kumar, and Liang)*
Exhibit 8 (Diagram LAN router NAT)*
Exhibit 9 (Pollution in P2P File Sharing Systems" Study by Ross, Kumar, Liang, and Xi)*
Exhibit 10 ("SystemLog" text file from MediaSentry)*
Exhibit 11 ("UserLog" text file from MediaSentry)*
Exhibit 12 (Screenshot from MediaSentry)*
Exhibit 13 ("Traceroute" text file from MediaSentry)*
Exhibit 14 ("UserLog (Compressed)" text file from MediaSentry)*
Exhibit 15 (Unsigned undated October 25, 2006, draft report)*
Exhibit 16 (April 7, 2006, report)*
Exhibit 17 (Handwritten notes, page DJ0067)*
Exhibit 18 (Handwritten notes on form)*
Exhibit 19 (November 17, 2004, Letter of Patrick M. Flahterty, "Designated Agent")*
Exhibit 20 (Resume)*
Exhibit 21 (Page from Encase web site)*
March 12, 2007, Letter from Ray Beckerman to Magistrate Robert M. Levy*
Exhibit A-Tom Mizzone declaration in Elektra v. Santangelo*
Exhibit B-Jacobson Deposition Exhibit 6*
Exhibit C-Jacobson Deposition Exhibit 10*
Exhibit D-Jacobson Deposition Exhibit 12 Pages 1-3*
Exhibit E-Jacobson Deposition Exhibit 13*
Exhibit F-Jacobson Deposition Exhibit 14*
Exhibit G-Jacoboson Deposition Exhibit 11 Pages 1-3*
Exhibit H-Oral Argument in Warner v. Does 1-149, Excerpt from Transcript*
Exhibit I-February 23, 2007, Deposition of Dr. Doug Jacobson, Excerpt of Transcript*
March 14, 2007, Letter of Richard L. Gabriel (MediaSentry Protective Order Motion)*
March 27, 2007, Letter of Richard L. Gabriel to Magistrate Levy (Re Motion to Compel Ms. Lindor's Son to Produce Computer)*
March 27, 2007, Letter of Richard A. Altman to Magistrate Levy (Responding to Richard L. Gabriel March 27th Letter)*
March 30, 2007, Granting RIAA Motion for Protective Order*
Defendant's Notice of Objection to March 30, 2007, Granting RIAA Motion for Protective Order Concerning MediaSentry agreements*
March 30, 2007, Order Denying RIAA Motion to Compel*
April 2, 2007, Letter of Richard Altman (Re: Attorneys Fees)*
April 3, 2007, Letter of Richard Gabriel (Re: Attorneys Fees)*
April 9, 2007, Objections of RIAA to March 30, 2007, Order, Denying Hard Drive Production*
April 9, 2007, Response of RIAA to Defendant's Objection to Magistrate Order Granting MediaSentry Protective Order Motion*
April 10, 2007, Order, Denying Woody Raymond Request for Attorneys Fees*
Objections to Magistrate's Order*
April 20, 2007, Letter of Richard A. Altman Correcting Objections*
April 26, 2007, Letter of Morlan Ty Rogers to Magistrate Robert M. Levy Requesting In Limine Exclusion of RIAA Expert witness Douglas Jacobson trial testimony*
Exhibit T (Transcript of Deposition)(Part 1)*
Exhibit T (Transcript of Deposition)(Part 2)*
Exhibit R (Report of Expert)*
Exhibit H (November 30, 2006, Hearing Transcript)(Part 1)*
Exhibit H (November 30, 2006, Hearing Transcript)(Part 2)*
Rule 37.3 Letter*
Order Re May 25, 2007, Telephone Status Conference*

The transcript of the deposition of the RIAA's expert, Dr. Doug Jacobson of Iowa State University, taken in UMG v. Lindor on February 23, 2007, is now available online:

Transcript of February 23, 2007, Deposition of RIAA Expert Witness, Dr. Doug Jacobson, in UMG v. Lindor (Condensed format) (pdf)

ASCII text version of transcript

Deposition Exhibits:

Exhibit 1 (Press Release)*
Exhibit 2 (Press Release 4/21/04)*
Exhibit 3 (Article 4/19/04)*
Exhibit 4 (Article 4/21/04)*
Exhibit 5 (Article 3/3/04)*
Exhibit 6 ("DownloadData" text file from MediaSentry)*
Exhibit 7 ("Kazaa Overlay" Study by Ross, Kumar, and Liang)*
Exhibit 8 (Diagram LAN router NAT)*
Exhibit 9 (Pollution in P2P File Sharing Systems" Study by Ross, Kumar, Liang, and Xi)*
Exhibit 10 ("SystemLog" text file from MediaSentry)*
Exhibit 11 ("UserLog" text file from MediaSentry)*
Exhibit 12 (Screenshot from MediaSentry)*
Exhibit 13 ("Traceroute" text file from MediaSentry)*
Exhibit 14 ("UserLog (Compressed)" text file from MediaSentry)*
Exhibit 15 (Unsigned undated October 25, 2006, draft report)*
Exhibit 16 (April 7, 2006, report)*
Exhibit 17 (Handwritten notes, page DJ0067)*
Exhibit 18 (Handwritten notes on form)*
Exhibit 19 (November 17, 2004, Letter of Patrick M. Flahterty, "Designated Agent")*
Exhibit 20 (Resume)*
Exhibit 21 (Page from Encase web site)*
Jacobson 2003 Senate Testimony (Used for Questioning but not marked as exhibit)*

* Document published online at Internet Law & Regulation

Commentary & discussion:

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avoision.org
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McGrew Security

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Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

This report in from Variety.com:

RIAA targets university students
Recording industry launches antipiracy effort
By WILLIAM TRIPLETT

The Recording industry launched an antipiracy-educational initiative aimed at university students that includes a chance for a "discounted" settlement and no record being kept of the illegal downloading or file-sharing.

Citing a recent survey that showed some 50% of students continue to download or swap illegally, Recording Industry Assn. of America officials said Wednesday they had sent 400 "pre-litigation settlement letters" to students at 13 universities.

Previously, the RIAA has first filed suit after identifying a screen name and computer address, then sought ought the owner of the screen name.

But now, the org is going first to the alleged infringer by contacting the school and asking for the letter to be forwarded to the relevant student. The letter proposes a "substantially discounted" settlement and a promise of no lawsuit and no record if the student responds cooperatively within 20 days.

Complete article

And see coverage by p2pnet.net's Jon Newton on the RIAA's "Incriminate Yourself" website:

RIAA 'incriminate yourself' site

p2pnet.net news:- "Warner Music, EMI, Vivendi Universal and Sony BMG, the members of the Big 4 music cartel, think they've figured out a neat way to save themselves embarrassment in the courts, and costly lawyers' bills, as they try to sue you into buying their 'product'," p2pnet posted in today's (February 28) lead story intro.

"Their 'incriminate yourself' web site is now online."

The idea is: American students get to admit they've been 'illegally' downloading copyrighted songs without Warner Music, EMI, Vivendi Universal and Sony BMG, the members of the Big 4 music cartel, actually doing anything themselves.

Complete article

Commentary & discussion:

mark'lectic
Knoxville News Sentinel
Heise Online (German)
ASU Web@Devil
North Dakota State University Spectrum
Athens News (Ohio University)
Athens News (Ohio University)
College Times (Arizona)
p2pnet.net
Download Squad
Knoxville News Sentinel
LSU Daily Reveille

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs