Recording Industry vs The People: Marie Lindor asks Magistrate Levy to reconsider ruling allowing MediaSentry to refuse to answer subpoena in UMG v. Lindor

Friday, May 23, 2008

Marie Lindor asks Magistrate Levy to reconsider ruling allowing MediaSentry to refuse to answer subpoena in UMG v. Lindor

Marie Lindor has made a motion for reconsideration in UMG v. Lindor, asking the Magistrate to recall his previous decision denying her motion to compel MediaSentry to respond to the subpoena duces tecum she had served.

Letter of Ray Beckerman to Hon. Robert M. Levy (reconsideration of May 16th order denying motion to compel MediaSentry response)*
Exhibit A -- May 16th order*
Exhibit B -- November 14, 2007, Subpoena*
Exhibit C -- May 13, 2007, article from Chronicle of Higher Education*
Exhibit D -- May, 2007, declaration of Tom Mizzone*

* 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

To contribute to Marie Lindor's legal defense, see below.
The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.

8 comments:

Anonymous said...: First I must compliment Marie Lindor that she found such a patient counsel that still hasn't lost hope that Mr Levy will base his rulings on impartial application of the applicable law and still tries to "explain it" to him.

If I were her Counsel I would already have lost all hope and had resignated that this particular judge could really act neutral as a judge, and not like -as I have the impression so far from his prior rulings- as an "undercover agent" for Recording Industry Plaintiffs.

Lets hope Mr. Levy "gets it" what his role as a judge is supposed to be after all and thinks his rulings over again!; May 23, 2008 at 12:39:00 PM EDT
Alter_Fritz said...: P.S.
Oh Ray, thanks for teaching me a new word / a new proverb since I did not know what "the brevity" was:

"We apologize if the brevity of our previous papers did not make it clear that the information is sought for purposes of impeachment."

Now I do:-) and will try to remember.

http://www.dict.cc/english-german/Brevity+is+the+soul+of+wit.html; May 23, 2008 at 1:21:00 PM EDT
Anonymous said...: The very clear letter by RB is a letter that no defense council should have needed to write. I can only presume that no lawyer could reasonably expect that discovery required for ordinary and routine impeachment purposes would be denied, and denied in part because the RIAA's gross misrepresentations have been presumed to be true and then some.

I'd like to be a bit more indignant but such comments, I should think, may best be reserved for a less delicate time in the on going case.; May 23, 2008 at 2:46:00 PM EDT
Anonymous said...: If a police officer claimed you were driving 95mph in a 25mph zone, you'd be entitled to know how he knew your speed. It could be a radar or laser speed detector, he could have been following you in a chase car, he could have just observed you drive by and estimated the speed, he could have heard from a resident that you were driving extremely fast. Obviously, each of these methods presents different arguments in the defense of your speeding ticket (e.g. the laser radar was miscalibrated v.s. old man Jenkins is always thinking anything that drives by is 95mph).

I don't understand why a Judge would attempt to preclude such valuable information for ones defense. Obviously, Ray and Marie do not want to "take their word for it" that MS observed her distributing copyrighted works. It's her right to challenge this assertion, by requesting that they "back it up."

Q; May 23, 2008 at 3:47:00 PM EDT
Alter_Fritz said...: "It's her right to challenge this assertion, by requesting that they "back it up.""

RIAA to MediaSentry: we ... [mimetype mp3 directlink]

You had something like that in mind, Q? ;-)

*SCNR*; May 23, 2008 at 5:14:00 PM EDT
Justin Olbrantz (Quantam) said...: I know some well-known parts of criminal trials, such as "guilty beyond a reasonable doubt", only apply to criminal trials. Does the right to confront your accuser apply to civil trials? If so, wouldn't denying this evidence be in clear violation of that right?; May 23, 2008 at 8:21:00 PM EDT
Alter_Fritz said...: ray, something seems to be wrong with the first link now
While its still the same name to your letter that tought me a new word "Brevity" the document that opens now is something from january last year!
Case 1:05-cv-01095-DGT-RML Document 127 Filed 01/02/2007 Page 1 of 2

Maybe P&F messed up their database?; May 26, 2008 at 5:36:00 AM EDT
raybeckerman said...: Thanks, alter_fritz,

I fixed the link.

Can't for the life of me figure out how that happened.

Best regards

Ray; May 26, 2008 at 8:39:00 AM 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