Recording Industry vs The People: Rolando Amurao fights back, argues MediaSentry must be found illegal and Matthew Oppenheim must be deposed

Friday, March 28, 2008

Rolando Amurao fights back, argues MediaSentry must be found illegal and Matthew Oppenheim must be deposed

In Lava v. Amurao, Rolando Amurao has fought back, filing papers (a) in further support of his motion to exclude the MediaSentry evidence for having been procured illegally and to compel the deposition of Matthew Oppenheim, and (b) in opposition to the RIAA's motions for voluntary dismissal, for summary judgment on the copyright misuse counterclaim, and for discovery sanctions.

Defendant's Memorandum of Law in Opposition to RIAA's 3 motions*
Declaration of Richard A. Altman in Support of application for continuance*
Defendant's Reply Memorandum of Law in Support of Defendant's motion to compel discovery and for in limine exclusion of MediaSentry material*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
Slyck

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

3 comments:

Justin Olbrantz (Quantam) said...: I really would like to see some people go to jail for this whole thing. Unfortunately, if anyone goes to jail (which itself is not that likely), it'll probably be people at MediaSentry, as opposed to the ones in the RIAA that masterminded this whole scheme.; March 28, 2008 at 1:13:00 PM EDT
Jadeic said...: I am impressed that is Richard A has at last had the courage to raise the spectre of 'corporate McCarthyism' as a true characterisation of the RIAA tactics that harks back to one of your great country's most shameful periods: albeit I could reflect off-topic on both Bush administrations for quite some time. In fact Richard's whole conclusion to 'Defendant's Memorandum of Law in Opposition to RIAA's 3 motions' makes excellent reading. I concur - 'something has gone seriously awry in our society and the legal system it is
supposed to reflect'.

Regarding the 'Declaration of Richard A. Altman in Support of application for continuance' I strongly suspect that the RIAA may concede elsewhere rather than expose dear Oppenheim to discovery: as any good gardener knows, shady characters need to be kept out of direct light.

But the best - Defendant's Reply Memorandum of Law in Support of Defendant's motion to compel discovery and for in limine exclusion of MediaSentry material- is kept till last. Here Richard hammers at three key areas of defence strategy: MediaSentry, Oppenheim and Statutory Damages. Like it or not the pressure is rising on the Circuit Judges embroiled in this litigation circus to earn their keep and settle some of these contentious issues. Akin to Mugabe in Zimbabwe, sooner or later MediaSentry must fall - their position is rapidly becoming untenable. Oppenheim - well the argument are strong but I still think this is the one that will be fudged. Which leaves Statutory Damages. To me this is the trickiest to argue if only because the decisions I have read across all circuits suggest that judges will opt for a conservative status quo on this issue. This is wrong but sadly inevitable. The view from over here is that the propensity for the US legal system to relish hugely disproportionate statutory damages settlements is frankly risible. It is frequently reported that European Courts treat them as an anathema and refuse to endorse such settlements.

I wait, as ever, to see how this pans out.

Dave; March 28, 2008 at 1:30:00 PM EDT
Anonymous said...: defendants who have the temerity to defend themselves or refuse to implicate others are somehow blameworthy, and they are expected to cooperate fully or be sanctioned if they don’t. This is exactly backwards.

There is the entire RIAA litigation strategy in a nutshell. Every "investigator" they use from MediaSentry to extreme pressure on innocent ISP accountholders to "throw somebody else under the bus" is illegal. Innocent Defendants have no obligation to work as unpaid investigators for a suit that should have never been filed in the first place.

And judges have been culpable for allowing these suits to continue as long as they have.

It is absurd for plaintiffs simultaneously to admit that they have no case, and that it is the defendant’s fault for not telling them. There is no basis for sanctions in this action and the Court should in itsdiscretion deny the request.

LOL!

And when billion-dollar corporations sue individuals solely on the basis of
illegally obtained evidence...the federal courts are becoming willing accomplices to this perversion of copyright law.

Exactly!

One is left to wonder what the practice of law was like in the early days of the USA when there wasn't this vast collection of precedents endlessly cite.

XK-E; March 28, 2008 at 1:58:00 PM EDT

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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