Tuesday, April 01, 2008

University of Maine School of Law's legal aid clinic brings Rule 11 motion, seeks injunction against all RIAA "John Doe" proceedings

In Arista v. Does 1-27, the case targeting students at the University of Maine, in which two "John Does" are represented by student attorneys from the University of Maine School of Law's Cumberland Legal Aid Clinic, and in which the Magistrate Judge has suggested Rule 11 sanctions against the RIAA lawyers for improper joinder, the Cumberland Legal Aid Clinic has filed a Rule 11 motion based on:

--the RIAA's use of the ex parte "John Doe" procedure to circumvent student privacy right under the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g(b)(2)(B) (commonly referred to under acronym “FERPA”);
--the RIAA's commencement of the proceedings for improper purposes, such as obtaining discovery, getting publicity, and intimidating people in order to extract settlements; and
--the RIAA's continuation of its illegal joinder practices in the "John Doe" cases.

The motion seeks:

--an injunction against the practice of bringing the "John Doe" actions;
--monetary fines; and
--dismissal with prejudice of Arista v. Does 1-27.

Rule 11 motion for sanctions*

* Document published online at Internet Law & Regulation

Commentary & discussion:

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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:

Anonymous said...

Just drafting such a motion and seeing how it plays out in the real world has to be a great education for these law students.

-DM

Jadeic said...

What I find most admirable is that they are able to build on past court submissions and are, in respect of the ex parte issue at least, able to make perhaps the most forceful rebuttal to date of this immoral RIAA tactic.

Dave

Anonymous said...

The virtually certain RIAA response will be:

The recording industry has lost, and is continuing to lose, thousands of jobs and billions of dollars to internet piracy.

They are only protecting their legitimate rights under the Copyright Act.

There is no other way to pursue their claims in this matter.

It actually benefits the court for them to pursue their claims in this manner.

It actually benefits the defendants who wish to settle and save money to pursue their claims in this manner.

That hundred of other courts in virtually identical circumstances have already vindicated their position in this regard by allowing discovery to proceed unhindered.

And that it will take them a minimum of 22 pages of reply to say what I've said above in 6 sentences.

-DM

Ray Beckerman said...

Yeah, anonymous DM, but how does that excuse:

1. violating FERPA
2. violating Rule 20 on joinder
3. violating a litany of court orders
4. bringing suits to get discovery when the rules don't allow that
5. bringing suits to get publicity when the rules don't allow that
6. bringing suits for purposes of intimidation to help their collection agents, when the rules don't allow that
7. making false statements of fact to justify the violation of Rule 20?

Just asking.

Shane said...

"Rule 11 imposes a duty on attorneys who sign complaints or other filings “to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, legally tenable, and ‘not interposed for any improper purpose.’” Cooter & Gell v. Harmarx Corp., 496 U.S. 384, 393 (1990) (quoting Fed. R. Civ. P. 11(b)(1))."

And how, exactly, can any case knowingly and solely based on illegal private investigations by an unlicensed investigator meet that burden? That is, all 20,000+ RIAA cases should be subject to Rule 11 sanctions.

Anonymous said...

Ray,

Since you asked, they will ignore all the issues you bring up, in the hopes that the court will/has forgotten about them as well. They will instead argue that pound-for-pound, their submission has more authorities and more weight than a couple law students pretending to be attorneys should have. And since they'll certainly deliver more pounds of paper than said law students, the RIAA plaintiffs expect the scales of justice to tip strongly in their favor when the submissions are placed in that balance.

The interesting thing to me here is that I recall you getting rather chastised, and the courtroom growing much colder, when you suggested a Rule 11 motion once. The judge indicated his exceptional disfavor to having such motions brought before him.

I would think that these law students are in the unique and enviable position of being able to bring precisely such a motion with little likelihood of it coming back to bite them in the same way a practicing lawyer might.

I just hope they're taken equally seriously in this process.

-DM

Russell said...

Hasn't FERPA been ruled on once?

IIRC, the sidestepped that whole law but I think the logic was pretty weak.

Michael Donnelly said...

(longtime lurker here)

Ray,

I have a couple questions that you can probably answer very easily.

Does the RIAA get to respond to this like a normal motion?

Possibly related to that, what is the time frame before we're likely to see a response from the court?

I read the document and it looks very good. I particularly enjoyed the bulk citations when referring to the old file-discover-dismiss trickery. High comedy.

Matthew said...

I really hopes this goes before a judge with some reason and a sense of justice.