Tuesday, April 22, 2008

RIAA lawyers defend selves from Rule 11 accusations in University of Maine case, Arista v. Does 1-27

In Arista v. Does 1-27, one of the cases targeting students at the University of Maine, the RIAA lawyers have filed papers seeking to defend themselves from accusations of having violated Rule 11.

They continue to argue that joinder of the John Does was appropriate, and cite older cases on that issue, mentioning none of the recent authorities to the contrary.

RIAA opposition to Rule 11 motion*

* 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

6 comments:

Anonymous said...

I see how, from the very second page, that the RIAA has already judged Does #16 and #18 guilty. It goes to their attitude that we already know the truth, and we'll stay after you until we dig it out. All this, and they don't even know who their Defendants are yet.

The RIAA also repeats their lie here that Defendants have both distributed, and downloaded, copyrighted sound records with no evidence that either ever happened. They don't even know if the files their investigators claim are present are really there. If they knew all this already there would be no need to inspect hard drives for evidence.

And the RIAA believes that they can "observe infringement occurring on P2P networks". That can only be true if their discredited Making Available argument was accepted, and even then they don't know the actual contents of files they observe, but never download, nor of those files were ever downloaded by anyone else ever! Making Available (not in copyright law) is their only chance.

Much of the RIAA argument seems to be that, because we've gotten away with it in mostly unopposed cases so far, it's not wrong. Easier to beg forgiveness afterwards than ask permission first type thinking.

Oh, and they trot out the "gathered substantial evidence of Defendant's illegal conduct" argument. THEY HAVE NOTHING! Nothing except some printouts to trick some judge into allowing harassment and extortion of their selected targets.

Courts throughout the country have held that Plaintiffs ' purposes and methods are legitimate.

I have to say that I truly don't believe that courts throughout the country actually even understand Plantiffs' purposes and methods.

Is it common to file a case? Attempt no settlement as part of that case? Dismiss the case? Present a take-it-or-leave-it offer? Then file a second case when the "offer" is declined? Is that normally the way cases work?

And I still deny that computer MAC address qulify as FERPA "Directory Information" as the RIAA contends.

What I observe is that the RIAA completely disagrees with these student lawyer's understanding of Rule 11. With sides so far apart, it's not likely that both can be right. It will be fascinating to see which side the legal judgment of this issue comes down on.

XK-E

Anonymous said...

The legal issues presented in this case have been successfully litigated by Plaintiffs in courts all over the country.
Interesting, because not a single 'joined' case has been litigated to conclusion. Additionally, there are many examples of 'dropped' cases when suing many Doe defendants. Of course, some of those dropped cases are refiled against individuals, which provides evidence for improper purpose. Finally, how many Doe cases have been contested? All the contested Doe cases are all the ones the RIAA is currently having problems with.

Once the University identifies the Defendants, Plaintiffs will evaluate how best to proceed on an individual basis.
This also suggests the only purpose to sue multiple doe defendants is to satisfy RIAA's judicial economy, not because they all conspired together to infringe RIAA copyrights.

Q

Anonymous said...

Universities should bring up the fact that if MAC addresses are considered directory information then the schools are breaking federal law. Schools must disclose to students what directory information we are releasing as well as giving them the chose to opt out. No school I’m aware of lists MAC addresses as directory information, not to mention if you opt out you can’t connect your computer to the network.

The FERPA defense is pretty weak, but I would also think there would be other privacy laws, to cover the MAC address, because we are taking that information off of the students personally owned computing, even if it is by electronic means and required to connect to a network.

Jadeic said...

In all honesty the RIAA's petulance is becoming risible.

"Nevertheless, counsel elected to file Defendants' Motion anyway." - I ask you!

I thought you would like this quote from the letter sent by Home Roberts & Owen LLP referred to as Exhibit A

"Plaintiffs have a good-faith basis for pursuing their claim for copyright infringement and have at all times acted ethically and professionally."

That's a moot point...

Dave

Anonymous said...

James S. LaMontagne fails to actually read the rule 11 motion.

There is a great deal of argument about the fact that identities are discoverable regardless of FERPA application. The accusation the Doe defendants make is that the RIAA would not be privy to this information without a court-issued subpoena (regardless of FERPA obligations).

In other words, it does not matter if the RIAA is entitled to discovery if they had a case, because the RIAA does not plan to litigate the case, which is a rule 11 violation. The RIAA instead is using rule 45 to obtain identities of IP addresses they have, and dropping cases while they attempt to extort "settlements." Obviously, the judiciary is not for subpoena-backed investigation - one should actually HAVE a case before filing a lawsuit.

Q

Russell said...

A few notes and opinions.

First thing I noticed was "The University can match the computer with the individual who was responsible for the computer on the University network.". This is much more accurate than the IP address identifies the infringer. They still don't connect the dots between, 'we observed infringing activity at this IP address' to 'the defendants are guilty of massive copyright infringement and are the spawn of Satan' (OK, I added the last bit) but they are getting more accurate.

They also conflate the idea that the purpose of the suit legitimizes the methods. They have the right under law to protect their copyrighted works. But to state that courts have found the methods legitimate is misleading. The vast majority of courts haven't ruled on the methods because they have not been briefed. Lack of disapproval does not equate to approval. In general the RIAA acts on the proposition that because their purpose is valid, ipso facto the methods they use are valid.

The issue before the court is whether section 11 sanctions are justified for either knowing violation of FERPA and/or misuse of the judicial process. The issue is NOT whether FERPA information is protected nor is it whether the case suffers from misjoinder as the RIAA would lead you to believe from their defense.

I don't hold much hope for the sanctions on the FERPA grounds simply because the issue of the IP address being privileged is still unsettled. I think that it will eventually be found privileged but as long as there is uncertainty over the issue, sanctions would be unlikely and unfair.

Sanctions on the misuse of process are much more realistic. But not on the issue of misjoinder. The RIAA has only been told recently not to use that method so it will be difficult to make sanction stick on the grounds that the RIAA has thought this a legitimate process. It is pretty clear that it is not, but no judges have been calling them on it.

BUT the RIAA's practice of initiating a lawsuit to get this information and then dropping the case to offer a settlement, and if that fails initiating separate cases for each DOE is a misuse of process.

I believe that you have to be prepared to pursue a case to its conclusion when you file. You may dismiss the case as new information becomes available, but you state on filing that you have enough evidence to proceed. The RIAA strategy, which they admit, is to drop the case as soon as they have the identifying information they need to initiate a new case.

Either the defendants are joined or they are not joined. The RIAA actions clearly show that the Does are not joined in any legally meaningful way, simply joined for the RIAA's efficiency. And they have no intent to pursue this case. Therefore sanctions are justified for misuse of process.