Recording Industry vs The People: Dawnell Leadbetter Files Appellate Brief from lower court determination that she was not "prevailing party"

Friday, January 18, 2008

Dawnell Leadbetter Files Appellate Brief from lower court determination that she was not "prevailing party"

Dawnell Leadbetter has filed her brief, in support of her appeal from the lower court's ruling that she was not eligible for an attorneys fee award because she was not a "prevailing party", in Interscope v. Leadbetter

Appellant's Brief*

* Document published online at Internet Law & Regulation

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

9 comments:

Art said...: Well written brief!!!

If the plaintiffs dismissed without prejudice and the statute of limitations has run out, then they cannot be the prevailing party. If the plaintiffs aren't the prevailing party then who else besides the defendant is the prevailing party?

The appellate court should clearly vacate and remand for costs and attorneys fees due to the defendant.

Regards,
Art; January 18, 2008 at 10:08:00 PM EST
StephenH said...: I am suprised that Capitol Records v Foster and Atlantic Recording Corp v Andersen were not sited cases in this brief.; January 19, 2008 at 1:14:00 PM EST
Anonymous said...: I'll second Art's compliment, and add that I think it would be interesting to couple this argument about prevailing parties with the discussion about illegal, mass joinder of suits by the RIAA. If they want to try and join dozens of suits together to save on filing fees, then they should be saddled with paying the costs of any prevailing adversaries' legal fees, particularly in cases like this where "dismissal with prejudice" occurs after the statute of limitations runs.; January 19, 2008 at 2:08:00 PM EST
Alter_Fritz said...: This comment has been removed by the author.; January 20, 2008 at 12:02:00 PM EST
Alter_Fritz said...: This comment has been removed by the author.; January 20, 2008 at 12:07:00 PM EST
raybeckerman said...: ?; January 20, 2008 at 6:28:00 PM EST
Anonymous said...: In the Ninth Circuit Court of Appeals, anything is possible.

They should recognize that in this case, the defendant has received all the relief possible in the sense that the case has been dropped with the fully knowledge on the plaintiff's part that it can never be refilled again - unless they can make something out of their "continuous and ongoing" argument. That's a very material alteration in the relationship of the two parties.

The shameful district court maintains that Ms. Leadbetter never prevailed on any motions before the court. This so ignores the fact that Ms. Leadbetter prevailed on the fact that plaintiffs didn't, AND NEVER HAD, ANY EVIDENCE that she had actually committed copyright infringement.

And that's the real key here. Plaintiffs knew from the very beginning that they'd never been able to identify the actual individual doing the file sharing. Heck, they can't even identify the actual computer or its hard drive, since there could be a thousand Ghosted hard drives, all identical, only one of which ever was part of a computer performing actual file sharing. Plaintiffs knew all this, and filed suit anyway, claiming from the outset that the necessary evidence to win in court had already been secured.

Plaintiffs deserve to be punished severely for this.

In fact, the RIAA should be beating a path to the defendant's door with settlement offers, before the Ninth Circuit can actually consider this case.

Of course, this would all be fixed in a flash with a simple and straight-forward Loser Pays system.

-Dodge Magnum; January 20, 2008 at 7:03:00 PM EST
Alter_Fritz said...: ray asked: "?"

I just thought to give you a laught too but did not want to spam your corporate email address with it.
So I just used the most logical way where i could be sure you would see it: your blog

Oviously someone "hacked" the RIAA webpage
-(I swear under penalty of perjury that it wasn't me and I do not even know how to do this kind of stuff but I know how to copy URLs into the browser and I have now not "missspoken" like the Pariser did!)

Torrentfreak put it that way;

Apparently the RIAA is so busy suing consumers that they forgot to hire a decent programmer. With a simple SQL injection, all their propaganda has been successfully wiped from the site.
http://torrentfreak.com/riaa-website-hacked-080120/

[Thanks for cutting me much much slack here and switching the privious postings live. I will delete it myself in a few hours if you don't object since its not only WAAY off topic, but also a mean example of what we germans call "Schadenfreude"]

As Avenue Q put it:
NICKY:
Oh, Schadenfreude, huh?
What's that, some kinda Nazi word?
GARY COLEMAN:
Yup! It's German for "happiness at the misfortune of others!"
NICKY:
"Happiness at the misfortune of others." That is German!; January 20, 2008 at 8:26:00 PM EST
Anonymous said...: I think this is reference to the fact that RIAA on Sunday was hacked.
http://torrentfreak.com/riaa-website-hacked-080120/; January 20, 2008 at 11:55:00 PM EST

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove