Monday, January 28, 2008

Magistrate Judge in U. Maine case votes to sustain complaint but suggests Rule 11 sanctions for RIAA lawyers' "gamesmanship" on joinder issue

In Arista v. Does 1-27, the Portland, Maine, case targeting students at the University of Maine, the Magistrate Judge to whom defendants' dismissal motion was referred has recommended that the complaint be sustained, rather than dismissed.

In footnote 5, however, she recommended that the Court consider imposing Rule 11 sanctions based upon the RIAA's lawyers' "gamesmanship" in pretending to have grounds for joinder, when in fact there are none:

I share the Doe Defendants’ concern over the absence of individualized allegations, but for a different reason. My concern has to do with the rules of joinder, see Rule 20(a), and whether it is appropriate for the Plaintiffs to join claims against disparate defendants concerning disparate (albeit similar) conduct, even if only for the purpose of gaining the authority to serve subpoenas to obtain the defendants’ names and contact information. I assume they have done so in order to limit their filing fees and make their discovery work more manageable, but I am not convinced that it is proper. See, e.g., DirecTV, Inc. v. Adrian, 2004 U.S. Dist. LEXIS 8922, 2004 WL 1146122 (N.D. Ill. May 17, 2004) (involving claims that defendants separately pirated satellite TV services, without any allegation of concerted action, concluding that joinder was improper, and severing all but the first named defendant from the action). In particular, paragraph 20 of the complaint alleges that the claims against all defendants arise from the “same series of transactions or occurrences” because the Doe Defendants have the same ISP (the University of Maine) and all engaged in file-sharing over the Internet using that ISP. The complaint wants, however, any allegation of concerted conduct. The allegation that all of the claims arise from the same series of transactions or occurrences because all of the defendants used the same ISP sounds good, but makes little sense when one appreciates that having a common ISP says nothing about whether the use of that service by two or more people amounts to the same transaction or occurrence. 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. Separately, the Court may sever defendants sua sponte, pursuant to Rule 21, although dismissal of the action is not authorized. I appreciate that increased costs may redound to the defendants’ detriment eventually, but it is difficult to ignore the kind of gamesmanship that is going on here with respect to joinder.

Suppose, instead of university students, the record companies chose to target all individuals within the District of Maine who had used these P2P services and had TimeWarner Cable for their ISP. Would all those individuals be properly joined in a single complaint? I think the Plaintiffs know the answer to that question because on May 5, 2007, many of these same plaintiffs filed a very similar lawsuit, Atlantic Recording Corp., et al. v. Does 1-22, 1:07-cv-057-JAW. A procedure similar to the one used in this case was adopted in that case, but no motions to dismiss or motions to quash were filed and presumably the plaintiffs obtained the discovery they sought. The case was voluntarily dismissed on July 16, 2007. Following that dismissal the same counsel filed at least three separate cases in this court: Atlantic Recording Corporation, et al. v. Anna Lenentine, 1:07-cv-133-JAW, on September 4, 2007 (still pending); Capitol Records Inc. v. Cara Laude, 2:07-cv-154-GZS, on September 4, 2007 (settled and dismissed on January 22, 2008); and Atlantic Recording Corp. v. Christopher Leavitt, 2:07-cv-156-DBH, on September 4, 2007 (voluntarily dismissed with prejudice on October 16, 2007). The relevant allegations in the respective complaints simply state that the defendants were "identified as the individual[s] responsible for that IP address at that date and hour" without reference to how the identification was made. However, there is certainly a "plausible inference" that the identifications were made as a result of the May lawsuit. It is curious that no attempt was made to join these cases as arising from the same transaction or occurrence if my plausible inference is accurate. I think no such attempt was made because it is apparent that the cases would not be properly joined. 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. (emphasis supplied)
January 25, 2008, Recommendation of Magistrate Judge sustaining complaint and recommending order to show cause for Rule 11 violation*

* Document published online at Internet Law & Regulation

Commentary & discussion:
Ars Technica

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


bbsux said...

Does this mean that according to this Magistrate's Opinion -- they could file for improper joinder and get sanctions for improper joinder?

ryan said...

Wow they can't be happy about that one :P

BTW I really like the quotes down the side on the page.

Anonymous said...

Ray -
Not being a lawyer, could a defendant in one of these cases argue that information obtained via these improper joiners is not allowed in the other cases? Sort of like an unclean hands doctrine?

The reading of Rule 11 to me seems to imply that the court can sanction the lawyers (for the plantiff), but not necessarily rule in favor of the defendant due to the 11(b) misconduct.


Ray Beckerman said...

The Magistrate is recommending that the District Judge (a) issue an order to show cause requiring the RIAA and/or its lawyers to show cause why they should not be punished under Fed. R. Civ. P. 11, and/or (b) dismiss and sever as to John Does 2-26.

Anonymous said...

Sounds like half a glass at least. Whether half full (the RIAA is in measurable trouble over this), half empty (the complaint is being allowed to continue), or merely twice as big as it needs to be (the engineer's assessment) is yet to be determined.

Certainly it's hard to believe that any actually imposed sanctions could really hurt the RIAA litigation machine, but believe it would be a significant issue if they continued afterwards in other courts with behaviors for which actual sanctions had been imposed in this court.

-Dodge Magnum

Anonymous said...

That fraud Carlos Linares needs to be refuted. He declaration is being accepted at this stage of every proceeding unopposed. For example, just from what is excerpted in this opinion:

Transferring exact copies of "files" is used to imply that those files are exact copies of the originally distributed music in all cases. This is almost never true.

He refers to "offer to each other for distribution and copying files". Is it "distribution" or "copying"? Or can he explain how it is both of these very different words. And he again implies strongly that mere offering for distribution has already been ruled illegal, when that's not what the copyright act says.

That "P2P networks enable users who otherwise would have no connection with, or knowledge of, each other…". This is hardly true at all. Music fans with similar interests find each other in many ways. He again implies that these people could have never found each other without these illegal P2P networks.

"A search can be as simple as logging onto a P2P network and examining what files are being offered by others logged onto the network." Is this what they're actually doing? He says it can be this, but never that this is actually how it's being done.

"In gathering evidence of copyright infringement, MediaSentry uses the same functionalities that are built into P2P programs that any user of the software can use on the network." What the hell does that even mean? The same functionalities? That sounds oh so technical, and communicates nothing!!

"Users of P2P networks who distribute files over a network can be identified by using Internet Protocol ("IP") addresses because the unique IP address of the computer offering the files for distribution can be captured by another user during a search or a file transfer." This so very wrong, as has been pointed out here too many times to mention now.

"Users of P2P networks can be identified by their IP addresses because each computer or network device (such as a router) that connects to a P2P network must have a unique IP address within the Internet to deliver files from one computer or network device to another. Two computers cannot effectively function if they are connected to the Internet with the same IP address at the same time." They absolutely can so!! Two computers, connected through a common home router, both present the identical IP address to the Internet at any point that the RIAA investigators can see it. The same can be true for TWO HUNDRED computers!!

"This is analogous to the telephone system where each location has a unique number." Actually this is analogous to the telephone system where there can be hundreds of extension phones that all ring, and can be used, when a single telephone number is called.

"The RIAA also listens to the downloaded music files from these users in order to confirm that they are, indeed, illegal copies of sound recordings." This is laugh out loud ridiculous. How can you tell an "illegal copy" from a "legal copy" simply by listening to it? And is it proven that "The RIAA" does the actual listening? What makes them experts? They're not any of the record companies themselves. Is the supposed Carlos simply wrong here?

A strong questioning of this supposed Carlos Linares to force him to defend his conclusions on each point he tries to make would be a good thing for everybody!

Conclusion: The Magistrate Judge's reliance on the declaration of Carlos Linares sadly and badly misplaced. This declaration is deeply flawed, creates many untrue misimpressions, and should not be allowed in any RIAA court case by any responsible judge.

A additional deep problem with this current opinion is it's belief that strict pleading standards (e.g. Twombly) don't need to apply at this preliminary stage. This is a faulty premise, perhaps based on the belief that this will all be worked out in the end at trial anyway, so No-Harm-No-Foul here. The problem is that, listen carefully now, THIS CASE IS ABOUT ONE THING ONLY. AND THAT ONE THING IS GETTING TO THE DOE'S PRIVATE, PROTECTED INFORMATION.

In short, the RIAA doesn't care at all that they cannot plead a winning case at this point. All they need is enough to force expedited discovery, and then the extortion – with this court being an "enabler" – begins. And the judges in these cases aren't getting that fact in time.

'The Plaintiffs’ complaint asserts that the Doe Defendants downloaded, reproduced and/or distributed copyrighted sound recordings owned or leased by the Plaintiffs using a file-sharing network." Downloading isn't illegal, and actual distribution to any member of the public is unprovable. The defense should bring this point up, and the court should require the RIAA to explain in some plausible manner how either of these two actions can actually be proven. In short, is it even possible to prove? If not, the plaintiffs don't have a winnable case, and should be kicked out now.

"The Plaintiffs vociferously reject this kind of ordinary inferential reasoning, …" I believe that is a typo Should likely be "Defendants vociferously" :-)

Lastly, "Simply stated, I am not persuaded that Twombly ushered in a new era for Rule 12(b)(6)". Sounds to me like the magistrate judge here is second-guessing the Supreme Court. Certainly not something I'd want to be doing in his position.

-Dodge Magnum

Alter_Fritz said...

Dodge Magnum wrote;
"Downloading isn't illegal, and actual distribution to any member of the public is unprovable."

Thats only half the truth thanks to IMO bought laws.
The United States No Electronic Theft Act (NET Act), a federal law passed in 1997, provides for criminal prosecution of individuals who engage in copyright infringement, even when there is no monetary profit or commercial benefit from the infringement. Maximum penalties can be five years in prison and up to $250,000 in fines. The NET Act also raised statutory damages by 50%.
( )

Anonymous said...

Re: Joinder

Wow. It's been a while since we've seen the issue of joinder come up.

But it's about time. Joinder of multiple Does on the sole basis that they dial in to the same Internet provider? It's quite likely the weakest point of the entire operation.

Re: NET Act

The threshold of criminal liability under the NET Act is "commercial advantage or private financial gain," or "during any 180-day period... a total retail value of more than $1,000."

It's not hard to see who bought and paid for the NET Act. The NET Act requires the criminal justice system to accept "victim impact statements" from "producers and sellers" of the infringed works, and "holders of intellectual property rights" in the works. Not often do special interests sign their names right into the law like this.

Please file an amicus curae! said...

Ray... can you do anything about this? I mean, can't you file an amicus brief or something (as part of your work for the EFF?) detailing how this is a clear pattern of conduct that they've been sanctioned for once before over in Texas?

I mean, I'm pretty sure you've been reporting all those cases this whole time, and if a Rule 11 motion is being contemplated, I can't see a better time to act. Don't you have a nice list of the dozens or hundreds of ex parte cases and can't you show how they were not later joined?

I know you want to put a stop to them and it occurs to me that if you can help start the ball rolling with Rule 11 violations on their records, you might put a stop to them that way just as much as by countering their "expert" witness. I mean, I have to believe that if they were paying their proper filing fees, this would get a lot more expensive for them and they would have a lot more trouble feeding the machine. After all, we both know that they just put people through their settlement center (heck, I believe you _have_ the court transcripts describing that, yet more evidence to support the "plausible inference" the magistrate found) and avoid court entirely after they get discovery if they can help it.

So would you or can you consider something like this? I have to believe that an amicus brief in a case like this would be unusual enough to get the Court's full attention, and I honestly can't see a better time to strike.

Or is there some rule against it that you have to follow even if you don't like it that I don't know about? IANAL, I just read your blog and know what amicus briefs are and that you're not willing to break the rules to win cases.

I honestly feel like an hour of your time collecting evidence you've already posted on this blog could be the difference between that inference being "plausible" enough to support sanctions and being too weak for them to want to hurt some lawyers career over something they're not 100% sure of.

Anonymous said...

How about an amicus brief that simply states that this case is nothing more than a fraud, a sham, an attempt to rope the court into an information farming, privacy violating, illegally investigated, extort the ISP accountholder with no evidence that they're the actual infringer, enterprise for a case they will immediately dismiss afterwards?


DijiDiji said...

How much value does this dicta have?

Ray Beckerman said...

Dear dijidiji

1. It's not dictum; it's a suggestion from the Magistrate Judge to the District Judge.

2. I guess we'll find out pretty soon how much "value" it has. I suspect a lot.