Recording Industry vs The People: Defendant "John Does" file reply papers in University of Maine case, Arista v. Does 1-27

Friday, June 06, 2008

Defendant "John Does" file reply papers in University of Maine case, Arista v. Does 1-27

In Arista v. Does 1-27, a case targeting University of Maine students, the "John Does" represented by Portland's Mittel Asen law firm have filed their reply memoranda in support of their motions to strike the Carlos Linares declaration, and to vacate the ex parte discovery order and quash the subpoena issued pursuant to that order, responding to the RIAA's opposition papers

Reply memo in support of motion to vacate and quash*
Reply memo in support of motion to strike*

* 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

8 comments:

Anonymous said...: Plaintiffs also suggest that the time to challenge the expertise of Mr. Linares will be “during discovery.” Opposition at 2. We are in discovery right now. Plaintiffs obtained an Order (Document 6) allowing them to engage in ex parte discovery.

Without a doubt the best putdown of the RIAA's arguments to date!; June 6, 2008 at 2:54:00 PM EDT
Jadeic said...: Perhaps, to save time, Ray, you could copy and paste the RIAA response to these two documents from elsewhere on the blog. I can see that you may argue that such copies may not address the specific points raised here by the defendant(s) but then IMHO they rarely have much relevance to the case in hand - usually relying on 'weight of paper' to win their argument.

Dave; June 6, 2008 at 4:56:00 PM EDT
raybeckerman said...: Dave, I'm not sure what you're referring to.

1. These are "reply" memos, so they're supposed to be the last word on these motions.

2. Why would you want me to copy and paste documents from somewhere else?; June 6, 2008 at 7:06:00 PM EDT
Jadeic said...: Since when have the RIAA lawyers ever played by the rules? If they think they can waste more of the court's time (and make more money) by challenging every utterance by the defence, challenging every 'misguided' decision by judges that fail to support the RIAA position, what makes you think that they will not 'respond' when they are not supposed to?

Dave; June 6, 2008 at 8:22:00 PM EDT
Alter_Fritz said...: I speculate he ment (probably because he is/was under the impression RIAA could counter that RE-Response of defendant again) that RIAA will (would have if ther were not this "3 strike rule how a motion is argued for) file something like

"congress and napster court said this and that, we are devestated, only one [or a few guys depending how many defendants they hae lumped together] are responsible singlehanded for all the billions of copies out there" and all the other non particular case- or oppositions argument answering specific stuff they fill their papers boilerplate like with.

Me waits for the day when one of their lawyers will start (similar to the argument they make in Lindor) to say: Sorry your Honour we can't counter argue those motions of defendants since we do it all the time the same way and that is highly proprietary and all that, so please deny defenants motions just because we say your honor to do so.; June 6, 2008 at 10:26:00 PM EDT
Jadeic said...: A_F - you got it in one.; June 7, 2008 at 5:07:00 AM EDT
raybeckerman said...: Well at least you guys understand each other.

I guess my problem is that I only speak Legalese.; June 7, 2008 at 9:56:00 AM EDT
Alter_Fritz said...: Ray wrote:
"I guess my problem is that I only speak Legalese"

Ray, don't feel too sad because of your monolingualism handicap. At least you probably got the meaning of Bob's footnote at first glance!

Doe 2 argued that much of what Mr. Linares said is hearsay and therefore inadmissible
even if based on personal knowledge.(1) Plaintiffs have said nothing about whether what Mr.
Linares said is hearsay nor did they say “it was hearsay but was admissible because it came
within an exception set out in F.R.Ev. 803 or 804.” The affidavit is hearsay and under F.R.Civ.
P. 43 is not admissible.

(1) By definition, most hearsay, “I heard it through the Grapevine,” is based on personal knowledge because the
witness did hear it through the Grapevine.

I thougth after first reading it "what the fu n is this lawyer talking about?" since so far I was not aware that it was/is also a proverb and not simply the english word for "Weintraube".
(Me always so far had pictures of a male and a female that stand in the mentioned grapevines on the lovely banks of the Mosel and the River Rhine in mind when I heard the eponymous song by The Temptations)

Little did I know that what "Lawyer Bob" was quoting means actually

http://www1.dict.cc/contribute/?action=audio-history&f=id-24334
and/or
http://www1.dict.cc/contribute/?action=audio-history&f=id-24319
and/or
http://www1.dict.cc/contribute/?action=audio-history&f=id-24326

Thank you Mr. Mittel.
Please don't refrain from using similar proverbs in the future. (only if they are an appropriate reaction to the RIAA bovine feces of course!); June 7, 2008 at 1:19:00 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