Recording Industry vs The People: North Carolina State University "John Doe #2" doesn't exist, MediaSentry report apparently false, reports Technician Online

Wednesday, March 12, 2008

North Carolina State University "John Doe #2" doesn't exist, MediaSentry report apparently false, reports Technician Online

Readers may recall that in the RIAA's "John Doe" case against 38 North Carolina State University students in Raleigh, North Carolina, LaFace v. Does 1-38, the judge dismissed the case as to all John Does except Doe Number 2, due to the fact that there was no basis for joining the different John Does in a single lawsuit.

As it turns out, according to a report from Technician Online, "John Doe #2" doesn't actually exist:

Students win first battle with RIAA
Judge rules in favor of the students' motion to quash a set of lawsuits dished out by the Recording Industry
Josh Harrell
Issue date: 3/12/08 Section: News

In the first public fight against the Recording Industry Association of America since the group first started passing out lawsuits two years ago, eight students won a motion to quash on Feb. 27, as a judge ruled to drop the lawsuits.

And on Monday, Greensboro attorney Stephen Robertson filed a second motion to quash with four new students against the RIAA in hopes that the judge will drop their lawsuits.

The judge ruling with the students is a positive sign for future cases, according to Pam Gerace, director of Student Legal Services.

The reason the judge ruled against the RIAA, Gerace said, was because the RIAA had filed the lawsuits in bunches, not individually. The judge dropped all of the 34 lawsuits given out in August except for one, noting that lawsuit as one individual lawsuit.

But that lawsuit, labeled Doe No. 2, cannot be found by the ResNet. Typically, the University is able to locate each anonymous downloader by his or her IP addresses. In the case of Doe No. 2 though, the IP address could not be linked to a certain individual.

Complete article.

[Ed. Note. Could this be an indication that the RIAA's unlicensed investigator, MediaSentry, doesn't know what it's doing? Perish the thought. -R.B.]

Commentary & discussion:

p2pnet.net

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

7 comments:

Anonymous said...: While this appears to be poetic justice, or true irony, why was Doe #2 kept? Normally aren't all Does after Doe #1 severed when improper joinder is determined?

XK-E; March 12, 2008 at 8:13:00 PM EDT
Rick Boatright said...: It could, but the article states that they can't tie the IP to an individual. The IP could be a router with several PC's behind a nat (dorm room or on-campus apartment for example, my daughter had three roommates with an in-room router)

It does take us back to the old -- nay ancient -- argument than an IP address is NOT AN INDIVIDUAL.

Or, as Patrick McGoohan used to say: "I am not a number, I am a human being!"

-_ Rick; March 12, 2008 at 10:26:00 PM EDT
Anonymous said...: hopefully this will help to expose the rouse and gambit that the riaa's been playing at the courts' expense.; March 12, 2008 at 10:51:00 PM EDT
Anonymous said...: Reminds me of old archived emails and Usenet posts from annoyed sysadmins dealing with MediaSentry complaints over unassigned or nonexistent IP addresses. My Google-fu is weak at the moment, but I know the messages are still out there.; March 13, 2008 at 3:02:00 AM EDT
David Lasky said...: Actually, the statement "certain individual" probably means that there is a NAT device in the way. Maybe an open wireless network in the library or cafeteria?
Or maybe the school contacted the student, and the student proved it was using a nat device.
I agree that mediasentry probably doesn't know what it is doing, but I think the explicit text indicates that there was a NAT device.; March 13, 2008 at 8:57:00 AM EDT
Alter_Fritz said...: XK-E asked why it was #2 and not #1 who was kept.

you are right XK-E normaly it's "the number one" that is kept.

See my answer why not this time on Rays earlier post already linked above where that question came up for the first time and Ray did not object to my explaination so I guess I read the decision correctly back then :-); March 13, 2008 at 11:56:00 AM EDT
Unknown said...: At NCSU, almost all machines are assigned top level IP addresses. (152.###.###.###) This includes dorm residences. IP addresses are matched to MAC addresses and anytime that association changes it is logged. In this case, the RIAA identified an IP address as belonging to an infringer when in fact the IP address had never been assigned.

This wasn't an issued of a NATing device causing ambiguity. This was a case of the RIAA trying to accuse a person who never existed. They somehow came up with an IP address that was never in use. To me, it sounds like they are just making up lists of numbers.

Hell, I can make up a list of dates, times and IP address right now. Some of them might even match to an actualy piece of computer hardware. Maybe I can sue one of the laser printers in Sullivan Hall, my old dorm back in the day. Goodness knows I'm entitled to damages for all the frustration those things have caused me.

152.1.3.206
152.2.211.156
152.1.7.3

I can has discovery?; March 14, 2008 at 1:58:00 AM EDT

Post a Comment

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