Recording Industry vs The People: In Boston University case, "John Doe" serves supboena on state police about MediaSentry

Saturday, May 17, 2008

In Boston University case, "John Doe" serves supboena on state police about MediaSentry

In Arista v. Does 1-21 (renamed London-Sire v. Doe 1), the case targeting Boston University students in which students have raised the illegality of MediaSentry's unlicensed investigation, the students served a subpoena on the State Police, who on January 2nd issued an order to MediaSentry to cease and desist.

The RIAA has moved to quash the subpoena.

RIAA motion to quash subpoena served on Massachusetts State Police*

* 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

4 comments:

Anonymous said...: From the RIAA motion:

"Plaintiffs first learned of the MediaSentry issue at the hearing on Does’ Motion To Quash
the Subpoena Served on Boston University."

Really?

Kip Patterson; May 17, 2008 at 2:08:00 PM EDT
Anonymous said...: This is absolutely astonishing!

While judges, with RIAA prodding, have said that students don't have the standing to quash subpoenas against Universities where the RIAA is seeking the student's own private, protected, information, the RIAA now seems to find the need to protect the Massachusetts State Police from the students.

This is the same RIAA that goes after non-party family members, often with no reason or evidence other than fishing and harassment, when Defendants have fought back.

WHERE IS THE RIAA's STANDING IN THIS AGAINST THIS 3RD PARTY?

How can the RIAA even consider that its THEIR duty to protect the State Police against subpoenas. Wouldn't the State Police themselves object if they feel the subpoena is unreasonable?

XK-E; May 17, 2008 at 5:14:00 PM EDT
Anonymous said...: Ray, the RIAA argues that MediaSentry is exempt from state PI licensing requirements because their work was performed "on behalf of counsel" (i.e. lawyers), meaning that it meets one of the exemptions to the licensing requirements. Yet how can there be counsel if there was no case at the time?

This would be like a lawyer instructing their investigators to locate some criminal class (bank robbers, wife beaters, child molesters, smokers, chose your crime) so that the lawyers could then sue them for damages. At the time that the investigation there was no legal suit in progress, and the lawyers were in the process of trying to create one on the information and belief that this particular crime was being committed. After the unlicensed investigators illegally uncovered information leading to group of people believed to be committing those crimes, THEN the first lawsuit was filed. How can it be "counsel" or valid lawyer work, during this initial investigation when no suspects or court case even existed? If anything, at this initial moment, the RIAA itself was operating as an illegal investigator, who hired/subcontracted MediaSentry to perform additional illegal investigations on their behalf.

Also, if the RIAA contracted with MediaSentry as one corporation to another, how can that be "counsel" that hired them? The RIAA is a corporation, not a lawyer.

Also, when the RIAA insists that the Defendant doesn't have standing to enforce the licensing statute, don't these investigations about illegal PI activity happen when a resident of the state complains? Seems to me that somewhere it was mentioned that it takes a complaint to trigger the investigation.

The RIAA argument that even if a violation of Section 23 occurred, there is no legal basis for excluding the information MediaSentry gathered. is truly horrible. If one is to accept that legal theory then no PI need ever be licensed since they can investigate freely and have everything they illegally produce be used. The ONLY proper remedy in law here is to exclude ALL of the illegally gathered evidence, and ALL of the evidence derived from the illegally gathered evidence – and punish MediaSentry severely as well so that they won't do this again!

Finally, it is not clear that defense counsel even represents one of the defendants in this case. Ha ha ha! Lawyers just love to work for free on cases that they weren't assigned to pro bono by the courts. Yeah, that's surely what's happening here.

(What's actually happening is that the RIAA is trying to force out this Doe's identity via his/her lawyer in the event they can't get it through the University, and that they can't proceed against the other Does until they know which Doe to not proceed against. Also, if they know which Doe has fought them at this state, you can bet that this Doe will receive their harshest attention if they do discover his/her identity. Brilliant move by the Defense to retain this confusion as long as the law allows them to do so since revealing just which Doe has fought them so far WOULD IMMENSELY PREJUDICE THIS DEFENDANT in all future preceedings.)

The RIAA would like to imply that this Doe has no standing to make this request since they are (might) be a non-party. HEY RIAA, IT’S THE DOE's THAT YOU'VE SUED HERE. That makes EVERY DOE A PARTY to this action and should give them complete standing to exercise every legal right and remedy available to them!

I think that the RIAA is truly worried here.

XK-E; May 17, 2008 at 5:37:00 PM EDT
Anonymous said...: I notice a very interesting quote in this motion:

"Plaintiffs have not yet received the information necessary to identify the Doe Defendant. Once that information
is provided, Plaintiffs will name each Defendant by name individually and will proceed with the litigation in the normal course."

Of course, I hope the Defendant that filed this makes the Court aware that if this action as described above happens, it would be the FIRST TIME that this action has ever happened. Those of us that have been watching these cases know that a dismissal is in order as soon as they get the names. I have NEVER seen anything else happen. Of course they might re-file if the person refuses to settle with them, but that is not what they are stating.

Of course, how they can join all these unrelated persons has not been covered either.

Since they are complaining that they need a court order to issue such process, maybe John Doe should apply for one. After all, turn about is fair play, as the recording companies are seeking to do exactly the same thing that they themselves are attempting to do, pre-process discovery.

I wonder if that attorney could put them in a pickle by filing an answer or some sort of Rule 12 motion. Wont such a filing keep them from dismissing this case without a Court Order??

Albert; May 18, 2008 at 1:45:00 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