Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.
In UMG v. Lindor, Judge David G. Trager has denied Ms. Lindor's motion to exclude the testimony of the RIAA's expert witness Dr. Doug Jacobson.
Ms. Lindor's motion was based on the ground that Jacobson had conceded at his deposition that this testimony could not satisfy any of the Daubert factors.
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To contribute to Marie Lindor's legal defense, see below.
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.
Effective December 1, 2006, the Federal Rules of Civil Procedure were amended to provide, in pertinent part, as follows:
(a)......A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal ... statute must promptly: (1) file a notice of constitutional question stating the question and identifying the paper that raises it, if: (A) a federal statute is questioned and neither the United States nor any of its agencies, officers, or employees is a party in an official capacity......; and (2) serve the notice and paper on the Attorney General of the United States...either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose....... ................ (d)....A party's failure to file and serve the notice, or the court's failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted.
Fed. R. Civ. P. 5.1
Needless to say this raises legal and logistical questions for the practitioner who wishes to assert a defense based on the unconstitutionality of the RIAA's damages theory.
I am not in a position to answer any of them, or to even provide an exhaustive list of the questions at this time. The purpose of the post is just to ask a few of them, and to ensure that lawyers and litigants reading my blog are aware of this provision.
Here are questions we need to ask:
1. Are we questioning the constitutionality of the statute or the RIAA's interpretation of the statute?
2. If we are questioning the statute, are we questioning it when we assert the defense in our answer, or are we merely preserving the right to question the statute at the trial of the merits?
3. Can the issue be determined in a particular case in the abstract, at the pleadings stage, or only in the context of a particular fact pattern?
4. Since there is no forfeiture of the constitutionality defense by reason of failure to file and serve the notice of constitutional question, what is the effect of omitting to file and serve the notice?
5. Is there a way to frame the defense so that it doesn't necessarily require a notice?
6. If the practitioner has interposed a defense which clearly calls for a notice of constitutional question, might there nevertheless be reasons to refrain from filing and serving the notice at an early stage of the litigation?
7. Does the rule militate against the principle that constitutional questions should only be reached when their resolution is unavoidable?
Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
In Atlantic v. Njuguna, in South Carolina, the RIAA's response to Ms. Njuguna's motion for judgment on the pleadings was not to attempt to defend their boilerplate, 'making available', complaint, but to cross-move for permission to file an amended complaint, in the new format used in other cases, which abandons the "making available" language and which falsely alleges that the plaintiffs "detected an individual".
For those of you planning to take depositions or serve interrogatories in the near future, the Oregon Attorney General's succinct "draft interrogatories" in Arista v. Does 1-17, quite pithy and to the point, are recommended reading.
Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
In Arista v. Does 1-9, in Columbus, Ohio, an Ohio State University student has moved to quash. The student is identified as John Doe #1. He or she is represented by Dean Boland of Lakewood, Ohio.
In a stinging rebuke to the RIAA's opposition papers, and in further support of the motion by the University of Oregon to quash the RIAA's subpoena seeking the identities of the students, in Arista v. Does 1-17, the Oregon Attorney General has filed reply papers which call for immediate discovery into the RIAA's tactics, and which point out to the Court that
--Carlos Linares, upon whose declaration the subpoena was issued, had no first hand information whatsoever; --the RIAA's "data mining" investigation does not reveal how the files were obtained or whether they were ever shared with anyone; --the RIAA papers did not show that any infringing activity actually took place; --MediaSentry appears to have been conducting an investigation without an investigator's license, in violation of ORS 703.405 and ORS 703.993(s), which is a crime; --in Atlantic v. Andersen, based on the same theories and investigative techniques as those used here, they had been found by the Court to have stalled and resisted discovery, before abandoning their case rather than oppose Ms. Andersen's summary judgment motion; --the RIAA appears to have been abusing the judicial process by obtaining information through subpoenas which it then hands over to "collection firms" using them "to leverage payment of arbitrary sums of money, based on threats and evidence from the data mining"; --the RIAA concealed a material fact from its original ex parte motion papers, which sought to create the aura of an emergency and the need for immediate ex parte action -- the fact that the University had informed the RIAA in July that the requested information had been gathered and would be preserved; --the RIAA lawyers falsely implied that the Attorney General's office had failed to "meet and confer" with them prior to making the motion to quash, even though the AG's office had in fact conferred with the RIAA's lawyers; --the deposition testimony of the RIAA's expert witness Doug Jacobson in UMG v. Lindor tends to indicate that the RIAA has already accessed private information on the computers of University of Oregon students; and --the RIAA has failed to provide an affidavit of the individual who actually conducted the 'investigation'.
The AG also pointed out that
Because Plaintiffs routinely obtain ex parte discovery in their John Doe infringement suits, as they themselves have pointed out, their factual assertions supporting their good cause argument are never challenged by an adverse party and their investigative methods remain free of scrutiny. They often settle their cases quickly before defendants obtain legal representation and begin to conduct discovery, as Mr. Rothman attested they did in the 2003 Portland State University case, and have dropped cases, such as their case against Tanya Andersen, in which their methods and practices have been challenged through counterclaims. Opposition, Exhibit 4, p. 2,76 &Affidavit of von Ter Stegge, Exhibit C, p. 12 ("In poker terms, defendant didn't call; plaintiffs folded").
While the University is not a party to the case, Plaintiffs' subpoena affects the university's rights and obligations. Plaintiffs may be spying on students who use the University's computer system and may be accessing much more than IP addresses. The University seeks the Court's permission to serve the attached interrogatories on Plaintiffs and conduct telephonic depositions of the individuals who investigated the seventeen John Does named in this lawsuit to determine 1) what their investigative practices are and 2) whether they have any additional information with which to identify the John Does. Plaintiffs have refused to provide the University with answers to these basic questions. If Plaintiffs have nothing to hide, they should be able to agree to these reasonable requests. Since Plaintiffs have declined to share any information about what they know and how they know it, the University seeks the assistance of the Court to obtain it.
There is speculation afoot that the "Big 4" record companies may be about to become the 'Big 3'.
Jon Newton at p2pnet queries whether a Reuters report that EMI, which has recently been taken over by a private equity group, is seeking to cut its funding of the recording industry "trade associations", signals that EMI will be "the first to opt out of subsidising Big 4 organised music hit squads such as the RIAA and IFPI"."
Were EMI to withdraw from the litigation frenzy, such frequent-suers as Capitol Records, Virgin, Priority, and Mute might be out of the picture. See "List of EMI Labels" (Wikipedia.org).
An inflamed jury's $9250-per-song-file jury verdict, totalling $222,000 for 24 song files, in Capitol v. Thomas, underscores the importance of defendant's establishing the plaintiffs' actual damages, which is their lost profits. The lost profits would be the revenue (~70 cents) less the expenses for each downloaded song (guessing 30 cents), or 40 cents per song.
So $750 would be 1875 times the actual damages.
And $9250 (the amount awarded in the Jammie Thomas case) would be 23,125 times the actual damages.
Needless to say an award of 1875 times the actual damages, let alone an award for 23,125 times the actual damages, would be subject to a challenge on due process grounds. See UMG v. Lindor, 2006 WL 3335048 (E.D.N.Y. 2006). See also Parker v. Timer Warner Entertainment Co., 331 F.3d 13, 22 (2d Cir. 2003); In re Napster Inc., 2005 WL 1287611 at 10-11, 77 U.S.P.Q. 2d 1833, 2005 Copr. L. Dec. P 29,020 (N.D. Cal. June 1, 2005); "Grossly Excessive Penalties In The Battle Against Illegal File-Sharing: The Troubling Effects Of Aggregating Minimum Statutory Damages For Copyright Infringement", 83 Tex. L. Rev. 525, 527 (2004); "Due Process in Statutory Damages", 3 Geo. J.L. & Pub. Pol’y 601, 618 (2005); "Judge Grants Marie Lindor's Motion to Amend Answer to Add Affirmative Defense of Unconstitutionality of Damages", Recording Industry vs. The People, November 9, 2006.
In UMG v. Lindor, when it came time for discovery into the 'actual damages' figures, the Magistrate Judge ordered the RIAA to produce a deposition witness and to turn over all relevant documents to Ms. Lindor concerning the lost revenues. The deposition and document production were eventually dispensed with through a stipulation.
However, when defendant served an interrogatory inquiring into the expenses, so that the lost profits per download could be computed, the RIAA refused to provide any expense information at all, forcing her to make a motion to compel, which the RIAA vehemently resisted.
Magistrate Judge Robert M. Levy granted the motion in part, and also directed the plaintiffs to appear for telephone depositions if needed, ruling as follows:
Defendant Marie Lindor moves to compel plaintiffs to respond to Interrogatory 1 of her Third Interrogatories, seeking a listing of "all expenses" plaintiffs incurred in connection with the thirty-eight song recordings at issue in this litigation. She seeks this information in support of her Ninth Affirmative Defense, which contends that the statutory damages plaintiffs seek are unconstitutionally excessive in violation of due process. Plaintiffs oppose, arguing, inter alia, that the interrogatory is vague, burdensome, costly and irrelevant and asserting that, in any event, they are currently unable to determine the expenses they incurred per song file downloaded. First, I find the interrogatory relevant under Rule 26, FRCP, as it is reasonably calculated to lead to the discovery of admissible evidence as to a claim or a defense of a party. In this instance, Judge Trager has ruled that the Ninth Affirmative Defense is not frivolous, and has allowed defendant to amend her answer to add this defense. See Memorandum and Order, dated November 9, 2006 at p.3. Second, plaintiffs shall supplement their answer within two weeks of the date of this Order and shall set forth with more specificity the categories of expenses they incurred in making the song recordings, such as, for example, royalties. Plaintiffs shall also state with specificity which categories of expenses, if any, (a) they are unable to quantify or (b) they cannot quantify without unreasonable burden or expense--and in the latter event, they shall explain why. If the explanation requires an in camera submission, a copy of plaintiffs' in camera submission shall also be sent to defendant. After the steps listed above have been taken, defendant may, if she chooses, notice a telephone deposition of a person with personal knowledge. (Italics supplied)
Judge Levy's July 28, 2006, order directing disclosure into the plaintiffs' pricing, and his November 25, 2007, order directing disclosure into the plaintiffs' per-download expenses, stand as clear authority for what should be an obvious proposition, that the revenues and expenses for authorized downloads are relevant and discoverable in connection with the due process defense that the damages being sought by the RIAA are unconstitutionally disproportionate to the damages actually sustained.
Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
We are advised by the Expert Witness Fund, being administered for the benefit of defendants in RIAA cases by the Free Software Foundation that as of November 27, 2007, the following contributions have been received, and disbursements made:
Contributions
By PayPal $ 2,080.00 By Credit cards 1,958.02 Other
Total $ 4,038.02
Disbursements to technical expert witnesses, technical consultants, and forensic examiners:
In UMG v. Lindor, Magistrate Judge Robert M. Levy has partially granted the defendant's motion to compel discovery into the RIAA's expenses-per-download, which the RIAA had opposed, giving the record companies two weeks to submit a further response to Ms. Lindor's interrogatory, and authorizing a telephone deposition of the plaintiffs thereafter.
Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
To contribute to Marie Lindor's legal defense, see below.
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.
In Interscope v. Kimmel, in Binghamton, New York, the RIAA has filed papers opposing defendant's dismissal motion. Discovery has been stayed pending the outcome of the dismissal motion.
According to this report in Information Week, the RIAA's latest anti-college round of letters targets 6 out of 8 Ivy League schools, but continues to give Harvard University a wide berth. (Cornell was left out of this round, but had been targeted in September.)
Maybe the other colleges and universities should learn a lesson from this.
Court records reveal that the RIAA filed its motion on November 6th, but did not mail copies to Mr. Dangler until November 20th, apparently after the Court had brought it to their attention that they had failed to give Mr. Dangler notice.
