Recording Industry vs The People: 2 "John Does" in North Carolina move to strike, submit informal opinon of regulatory body that unlicensed investigation violates law

Tuesday, June 10, 2008

2 "John Does" in North Carolina move to strike, submit informal opinon of regulatory body that unlicensed investigation violates law

You may recall a "John Doe" case against 38 different "John Does", LaFace v. Does 1-38, targeting North Carolina State University students, which was dismissed as to all but one of the John Does for misjoinder.

The RIAA commenced separate actions against some of the John Does, and in two of those cases, SONY v. Doe and Warner v. Doe, the defendants have moved to

-dismiss the complaint
-strike the Linares declaration, and
-quash the subpoena.

Among other things, the students' motion papers attach an Informal Opinion of the North Carolina Private Protective Services Board, based upon submitted facts, which states:

we understand that individuals claim to have accessed the hard drives of private citizens to look for music recordings that are being stored. If information is found showing that music is being stored, the individual will then sell that information, along with the internet protocol address, to certain companies that are interested in obtaining that information. The information may then be used as evidence in court. In essence, it appears that individuals may be performing services on a contractual basis to determine the identity, habits, conduct, activity, transactions, or acts of individuals.

If the above information supplied is correct and it is found that the individuals do not hold a private investigators license issued by the Board, it is the opinion of the Board's staff that such activities violate the Private Protective Services Act.

Warner v. Doe Motion to Dismiss, Strike, and Quash
Brief
Robertson Affidavit with Exhibit, May 14, 2008, Informal Opinion of North Carolina Private Protective Services Board
Proposed Stay Order
SONY v. Doe Motion (Similar papers filed in support)

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

2 comments:

Alter_Fritz said...: Me notes that that Informal Opinion of the North Carolina Private Protective Services Board is not only informal, but very informative and well on point of what MS/MD/BayTSB (the later ironicly advertising on your blog too!) are doing.
Online scalp hunters fishing for dolphins for the money and without a PI license!

So your honorable Judges when do you guys/gals sign arrest warrants so FBI can go after those criminals!
Was the revision 3 incident (*) not enough already?

But what can one expect when even the AG in a certain fruit allegedly is using the services of these fraudsters to catch allegedly cihld porn consumers in that apple?
(Don't get me wrong, me is for the catching and prosecution of CP-guys, but let this be done by lawenforcement and not by private guys like saaf and octavio!)

(*)
http://revision3.com/blog/2008/05/29/inside-the-attack-that-crippled-revision3; June 10, 2008 at 4:12:00 PM EDT
Anonymous said...: From the Brief:

The court in Dendrite described those procedures as follows:

1. make reasonable efforts to notify the accused Internet user of the pendency of the identification proceeding and explain how to present a defense;

Clearly this is exceptionally easy to accomplish by sending the court papers to the ISP, who then matches them to the accountholder and passes them along. Obviously the RIAA expects the ISP to be able to match the supplied information to the accountholder and return that information to the RIAA for further legal action, so they have to know that it would be just as easy to pass the legal papers to the unidentified defendant instead at this point in the case. All arguments that the RIAA cannot serve the defendants until after it has identified them are outright lies.

Where the identity of an anonymous speaker is at issue, the First Amendment simply requires that litigants demonstrate that their claims are more than a pretext for censorship or other improper purpose.

The RIAA's claims are exclusively an attempt to chill peer-to-peer filesharing among the large body of current users of it. They cannot identify a specific infringer, nor even a specific infringing computer, from the information they have presented. Instead they rely solely on fear, intimidation, a lack of legal knowledge by those they target, and a lack of financial resources for their opponents to fight them. The RIAA has no fear of losing in any of these cases no matter how far they purse them because it's not their money that they're spending. Even when the lose, they win, by making it clear how far they will take these cases and how much they'll spend on them.

{The Common Man Speaking}; June 10, 2008 at 5:18:00 PM 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