Thursday, May 29, 2008

RIAA brings third proceeding against University of Maine "John Does"; this time Court does not sign ex parte discovery order

The RIAA has commenced yet another case targeting University of Maine Students, BMG v. Does 1-11.

Like all other "John Doe" cases brought by the RIAA, it was brought ex parte.

This time, however, the judge declined to sign the proposed ex parte discovery order, noting that

I see no reason for the court to take immediate action in this case as there is no evidence that records are about to be destroyed.
The Court ordered the court papers to be unsealed, directed the RIAA to give copies of the motion to the University of Maine's legal counsel, and reserved ruling on the motion in light of the pending motions by the defendants in the 2 earlier cases.

The judge, Magistrate Judge Margaret J. Kravchuk, is the same judge who suggested an order to show cause for Rule 11 sanctions against the plaintiffs and their lawyers in Arista v. Does 1-27.

Order Reserving Decision on ex parte discovery application*

* Document published online at Internet Law & Regulation

[Ed. note. Is it just me, or has the stupidity of the RIAA lawyers attained new heights? To bring an ex parte discovery application before a judge who already has suggested they should be subjected to Rule 11 sanctions, based upon affidavits of "emergency" which have been previously shown to be false, and which are based on illegally procured evidence, at the same time that there is also a Rule 11 motion pending against them for bringing an unauthorized "action in aid of discovery"? Or is it the record companies who are stupid, since they're the ones actually paying these lawyers to do these things? -R.B.]

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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

19 comments:

Alter_Fritz said...
This comment has been removed by the author.
hsm said...

Ray,

Can a judge bring a rule 11 procedure at will or most a motion be submitted ?

--hsm

Lior said...

Regarding "improper joinder" (sic; IANAL): can the magistrate judge raise this issue on her own motion, or must an actual defendant step forward in each case?

Anonymous said...

Mr. Beckerman, isn't there a proverb that says something to the effect of "never interrupt your adversary when he's busy making a mistake"?

It's best to gloat AFTER they're finished shooting both of their feet. You wouldn't want to prevent them from reloading, would you?

matthew henry said...

I really don't think it's stupidity on the part of the RIAA. I think it's a conscious decision to push out as many as these cases as they can, no matter the consequences. The faster that MediaSentry can provide IPs, the faster that HRO can file suits.

These cases have turned into an extremely profitable industry staple in their own right. They're no longer filed for their deterrent effect. The RIAA will probably need to think long and hard about pursuing remedies that would actually shut down P2P filesharing.

I've seen statistics that have estimated the total number of individuals that the RIAA has sued or threatened to sue at 40,000, with an average settlement of $5000. That's a grand total of $200,000,000. That's an incredible profit that the big 4 labels are turning with practically no investment (assuming the lawyers, MediaSentry, and PSC Group are all on some sort of commission).

It's really just shooting fish in a barrel for the RIAA and I'm sure it has been incorporated into the record label business model. These defendants were never going to buy much music in the first place, but now they're essentially the labels' best customers.

The RIAA knows that there's a chance that this scheme won't last forever, so they're milking it for all it's worth. They keep filing and filing and filing, no matter what judge they offend. They know that only about 0.2% will fight back, so it's well worth the effort to initiate as many actions as is possible and settle with 99.8% of the defendants for $5000.

Ray Beckerman said...

Yes a judge can initiate Rule 11 proceedings on his or her own.

Yes any judge can reject anything in court papers, including improper joinder, without any John Doe raising it. The plaintiffs raised it when they crossed the threshold of the Court with their improper filing.

Yes maybe I shouldn't have pointed out what idiots they are. Sorry. I take it back. It was very smart of them to bring a 3rd improper proceeding, based on repeating the same allegations which have been proven to be false, and to ignore the prior order of the same Magistrate Judge before whom they are appearing again.

I don't think there's been a profit. I think they've probably settled around 10,000, for an average of around $3000 each, for a total of $30,000,000, and I think they've probably spent twice that, if not more.

Matt Fitzpatrick said...

FRCP Rule 21 governs misjoinder. "On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party." So yes, courts can deal with obvious misjoinder without any Does even showing up.

I'm sure it's happened before at least once or twice in Doe cases, and I'd be shocked if it hasn't happened at least once before in an RIAA Doe case.

Alter_Fritz said...

"[...]is it the record companies who are stupid, since they're the ones actually paying these lawyers to do these things? -R.B."

Yes!

And of course while some judges have "suggested" and or "threaten" the RIAA lawyers with rule 11, since it did not happen so far in even ONE case of those +30k cases the lawyers probably think they can do what ever they want with the american judiciary.

It seems those lawyers try to do with the courts in Maine what is called in a german proverb as "weichkochen" (literally: to boil until tender) with those repeated actions that raised concerns by the judges before.

Maybe Maine will be the first state where those rule 11 prodecures finally begin?!
I would hope so!

Anonymous said...

My guess is that the RIAA has forgotten what has been filed against which judges, allowing for a mistake like this.

Or they expected that they'd get random assignment of another judge who was starting at ground level on understanding the issues in this case.

That's unless they marked this case as related to their previous filings, as they have done in some other cases. In that case, they were particularly dumb I would think.

Scott said...

I've commented before that the law firms responsible for creating this litigation festival are going to keep it going as long as there are hours to be billed -- even if nobody but the lawyers benefit. I've seen it happen on a personal level, and it seems to be happening here as well. All you need are gullable clients with deep pockets and bad attitudes. Keep prodding the record companies to pay the invoices for legal services, and the lawyers' gravy train can run indefinitely.

Apparently the way things work in our legal system, the abusive conduct of the plaintiff's attorneys can't be stopped until the lives of many, many people have been wrecked. This causes little people like me to lose faith in government generally. If I was a target of the RIAA extortion machine, and they offered to settle for $3,000, you know what? I would settle. The deck is stacked against me if I try to fight. The government won't protect me. That's the way the system is designed. This blog provides ample evidence.

If there were any justice in this country, Cary Sherman would go to prison. But he won't end up there, we all know this. He may retire or be fired, but regardless, he'll be well-off and conscience free for the rest of his miserable life.

That's the way it works in the good old USA.

Delete this comment if you want, Ray, but at least I told the truth.

Anonymous said...

This is great news! Slowly, but surely, the judges are starting to awaken to the truth of RIAA's "campaign of terror".

Scott, don't become disenchanted with the legal process. Justice will prevail in the end. Even if in the worst case the RIAA prevails, they will only succeed at killing their own market.

The RIAA's tactics come right out of George Orwell's "Animal Farm". I imagine that Cary is analogous to Napoleon, HRO are analogous to Napoleon's attack dogs, and the RIAA shills are analogous to the sheep. I can just hear the sheep bleating "RIAA good, copyright infringement on a massive scale bad". My point is if we recognize and exercise our strengths (fighting their sham lawsuits, supporting defendants through legal defense funds, being vocal by contacting our political representatives, not buying RIAA's product, etc.) they will have no power over us. Don't give up!

Regards,
Art

Albert said...

There is talk of papers that were unsealed and given to the University. What was sealed? Complaint? Exhibit A and B Lists?

Even bigger question. why were they sealed in the first place? Was this an attempt to prevent the Does from discovering they were being sued, by sealing the IP addresses in question?

Albert

Ray Beckerman said...

Albert, I was wondering that myself? How dare they?

Albert said...

Reading the order more carefully, it states the sealed item was "...the ex parte motion"

Is this normal proceedure in their previous cases to file this under seal?

If not, do we have a link to an example of one of these motions that I can read?

Albert

Alter_Fritz said...

"How dare they?"
Ray come on, as if you can't think about that yourself!

(Ok, since you are a honest lawyer you might really can't think about that and what their intention with filing an ex parte(!) procedure under seal is)

So let me speculate for you (I can be very imaginatary and since me as a non lawyer isn't constrained in must thinking ethical about american justice system procedures I have no scruples to think even the most outrageous thoughts that a member of the lawyer bar should not even think about that he might start thinking them!) [How RIAA lawyers can be member of bar associations though is beyond any imagination even for me!]

The last 4 years it was enough to be successful before american judges with their fraudsters Dr. Doug, Carlos and Rich when they could file their "missrepresentations" about technical stuff and the law just ex parte but not under seal since noone where there to challenge their bovine feces.

So the judges -in their faithful believe that those RIAA lawyers that were considered by those judges as honestly acting officers of the court that would not abuse the courts and trick them into helping in RIAAs war against evolution of the markets- just rubberstamped their wishes.

This situation has now fundamentally changed (ok, that one certain district in one certain fruit with a certain pair of judges seems not to count in that observation!):

Thanks to your great work Ray this RIAAdefrauding does not work so easy any more:
More and more judges get aware what's going on in their district/their courtroom.
Defendants and their counsel could use your/your commenters provided information to challenge the allegations/educate the judges about the missrepresentations by RIAA counsel.

So to regain the unfair advantage the RIAA had with their ex parte proceedings in the last 4 years, they figured that -since their "we can tell judges rubbish"-fileings are nowadays under nearly real time scrutinity by knowledgeable persons- they must make sure that noone even get the slightest idea of such a "tell judges rubbish via ex parte"-fileing that could be find via PACER if it would not be under seal!

While I guess that such a behaviour by RIAA lawyers is probably in the highest unethical in your system I am unable to refrain from acknowledging that the idea itself is very smart by them.

I have to admit that I probably would try such stuff myself if I had no morals, my cause had no chance to be archiveable if I would play fair and I even would get payed over $300 an hour when I would do that stuff that RIAA lawyers do.

I can only hope the judges see behind this new modus operandi faster then it it took them to see behind the previous one!


A_F

Ray Beckerman said...

About the "sealing"..... I've looked into it, and I'm told it's probably something the Court itself did, as standard operating procedure for "ex parte" applications.

Alter_Fritz said...

little snafu i guess:

when using "your" link that opneds the pdf in an iframe on their page it works while they do the database call for the document with ".pdf" at the end.
Their own "View fulscreen" link however gives error:

Server.MapPath() error 'ASP 0173 : 80004005'
Invalid Path Character
/viewILRPDFfull.asp, line 11
An invalid character was specified in the Path parameter for the MapPath method.
while it does the call without the ".pdf" at the end it seems.

Ray, you might want to inform their customer service about that little "snafu" ;-)

Ray Beckerman said...

Thanks very much, Alter_Fritz. I've notified ILR Web.

Meanwhile, I think a possible 'workaround' for the problem would be to configure your browser to read *pdf files in Adobe rather than in the browser.

Alter_Fritz said...

Well, not wanting to be a smart ass here just some technical explaination:
You never read the pdf files with your browser. Browsers "don't talk" pdf, only html.

Your browser just calls your PDF viewer (adobe acrobat or foxit reader for example) whe it encounters a link to a pdf file and starts that program (Thats why it take sometimes some time when clicking a pdf link and the adobe software isn't already running in the background) before your browser displays the adobe reader window framed in the page.

But this is offtopic stuff, so you can delete those entries of yours and mine if you please. Ir I will kill my own later on myself if you don't mind