Wednesday, June 04, 2008

Correction to Columbia University story

The previous story which I had published on Arista v. Does 1-33, brought in Manhattan and targeting Columbia University students, was completely wrong. Apparently the judge had signed an ex parte discovery order, which just never found its way into the Court's docket sheet.

[Ed. note. Thanks to readers "marc_w_bourgeois" and "Alter_Fritz", for reading more carefully than I had. Sorry about that folks. -R.B.]

Complaint*
Ex Parte Motion*
Carlos Linares Declaration*
Memorandum of Law*
May 21, 2008, Order, holding case in suspense until John Does have been served*
Notice of adjournment*

* Document published online at Internet Law & Regulation

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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

17 comments:

Barry said...

I guess now they can really say that the suspense is killing them! ;)

Anonymous said...

Ah, very close to a Haiku. The judge's reply has 20 syllables, more than the official 17.

Or, to quote the bard, "'tis not so deep as a well nor as wide as a barn door, but t'will serve - ask of me tomorrow and you will find me a grave man".

A grave injury to the RIAA, one hopes.

Kip

Ray Beckerman said...

This is huge.

Alter_Fritz said...

Ray, you are of course the expert here, but non the less allow me to challenge your interpretation.

I read from Mr Kaos letter (the one where the judge wrote on by hand) that the court did indeed had already issued the ex parte order and that Mr Kao and the othrr RIAA vultures are waiting for the response by the Uni.

And that because the callendar had initially set a date before the time the response of the university to the suppoena is due that RIAA jsut asked therefor for a later time.

And THAT is exactly what the judge gave them by saying the case goes further once the university has responded to the suppoena and the RIAA has then the names of the defendants to name them directly.

So what is the "huge" thingy here that makes it differnt since the suppoena towards the university that will require them to give RIAA the student names was already issued.?

I don't see the differnce so far compared to the other cases where the RIAA lumped IP addresses together and assigned each IP a JOhn DOe Number.

Marc W. Bourgeois said...

Forgive my ignorance, but as I read the letter sent by Mr. Kao (3rd paragraph) it seems to indicate that an order to take discovery was granted, and that the scheduling is just to put the conference after the date when the subpoena is answered, but I don't see any such order in the docket report for the case.

-Marc

Ray Beckerman said...

Alter_Fritz, thank you for catching my error, and for reading Mr. Kao's letter more carefully than I myself had done.

Sorry to all.

Ray Beckerman said...

And thanks to marc_w_boourgeois as well.

Jadeic said...

Sadly, the correction picked up by Alter_Fritz & marc_w_boourgeois stands but begs the question - just what is this judge thinking of? I'm sure, or at least hope, that you number a fair few of the US judiciary involved in these cases as readers of this blog: unfortunately not contributors as far as we know! So, slightly off topic - when are they going to realise that they too are as firmly in the spotlight as the RIAA as far as we are concerned? Every decision they make is picked apart and is fair game for severe criticism when justified. They too have reputations and frankly some are as much in tatters as their more infamous brothers-in-arms funded by the RIAA. I would go so far as to say that, without any formal legal training, some of your contributors are 'better' experts in certain strictly limited aspects of copyright law than they. It is time for a wake up call.

Dave

Matt said...

So, when do you think the plaintiffs are going to correct the judge, and let her know they don't actually intend to serve any of the defendants?

Ha! Oh, I crack myself up sometimes.

Anyway, too bad that the judge hasn't found this blog, or the fine Wikipedia article on the subject. She'll find out what RIAA Doe cases are all about in a couple weeks when the RIAA files for dismissal and turns the case over to its collection agency.

Ray Beckerman said...

4 comments rejected for violations of policies #7 and/or 10.

Anonymous said...

None of the rejected comments are mine this time.

XK-E

Alter_Fritz said...

4 comments rejected for violations of policies #7 and/or 10.
ah, so me not alone then!

While I can't see my wrongdoing so much this time
For ones I praised Judge Mahoon for her desire to be a good applyer of the law and have quoted from the transcript of the first appaerense of Mrs. Santangelo before her

But maybe it was the question how to pronounce the name of judge Levy correctly that got classified as Rule 10 violation?

Or maybe my psoting was totally harmless, and Ray was just on a "comment-killing" spree which I fall inocently victim to too?

Lets find that out:

Ray Beckerman said...

Yes the comment killer struck again.

Alter_Fritz said...

Ok, so now I found it out. Thanks Ray for clarification.

so how does one translate "als+Richter+die+gebotene+Unparteilichkeit+vermissen+lassen" into english then?

Anonymous said...

Ray,

FYI

http://bits.blogs.nytimes.com/2008/06/05/the-inexact-science-behind-dmca-takedown-notices/

AnoyMouse

Anonymous said...

I'm pretty sure that you've run across Groklaw by now, but I found this link whilst browsing Groklaw today: http://dmca.cs.washington.edu/ which is a study on how well the copyright infringers are doing in actually tracking down infringers. This is a study which may be helpful in defending against the RIAA.

Regards,

Delestoran

Alter_Fritz said...

just so to have a consistent reading experience
the above mentioned quotations I used that fall victim to Ray's comment killing spree where I praised Juge Mahon for being a jduge that seems to be interested in doing good justice were taking out of this transcript:

1

9
9 White Plains, N.Y.
10 May 6, 2005
10 2:15 p.m.
11
12
13 Before:
13
14 THE HONORABLE COLLEEN McMAHON,
14
15 District Judge
15
16
17
18 APPEARANCES
18
19
19 COWAN, LIEBOWITZ & LATMAN, P.C.
20 Attorneys for Plaintiffs
20 MICHAEL F. MASCHIO
21
22 PATRICIA SANTANGELO
22 Pro Se Defendant

CHRISTINA M. ARENDS-DIECK, RPR, RMR, CRR
(914)390-4103

1 THE DEPUTY CLERK: 05 Civil 2414, Elektra
2 Entertainment Group v. Patricia Santangelo.
3 MR. MASCHIO: Good afternoon, your Honor.
4 THE COURT: Good afternoon.
5 And you must be Ms. Santangelo.
6 MS. SANTANGELO: Yes.
7 THE COURT: Hi. I'm Judge McMahon.
8 Okay, Mr. Maschio, what is the problem here?
9 MR. MASCHIO: Well, your Honor, this is a claim for
10 copyright infringement. Plaintiffs are the owners of
11 registered copies of recordings. And a list of six of those
12 recordings are annexed to the complaint as Exhibit A. And
13 annexed as Exhibit B is a list of musical compositions obtained
14 from the defendant's computer as of 11-4-04, which was the date
15 of capture.
16 According to our records, there are three main
17 computer users that have access to defendant's files.
18 Defendant uses the Kazaa search engine, which furnishings the
19 software, which allows the defendant to upload other users'
20 files.
21 The captured materials in Exhibit B shows that the
22 defendant had uploaded at least 1,641 files. We have selected
23 six songs, your Honor, from the defendant's files. We listened
24 to the songs and confirmed that they were the plaintiffs'
25 copyrighted recordings, and we believe that we have

1 established, as a result, that defendant has distributed and
2 made available for distribution at least six songs, which is a
3 violation of the plaintiffs' copyrights, and we seek damages
4 and costs.
5 Now, the history of the case is very brief. The
6 action was commenced in February, late February. The complaint
7 was filed in March. Your Honor issued an order on March 24th
8 scheduling this conference. The defendant was served on April
9 25th, and her time to expire does not --
10 THE COURT: Her time to answer.
11 MR. MASCHIO: -- time to answer does not expire until
12 May 15th. And she was advised of the conference, and,
13 obviously, she's here as a result of that.
14 I understand that, prior to the institution of this
15 lawsuit, she had some discussions with the settlement center,
16 but those were not consummated. And that's the status of the
17 case at this point, your Honor.
18 THE COURT: Okay.
19 So, Mrs. Santangelo, hello.
20 MS. SANTANGELO: Hi.
21 THE COURT: Talk to me.
22 MS. SANTANGELO: I really don't know where to start.
23 I wasn't sure, because I had just gotten served last week,
24 that -- I haven't had a chance to -- they say here to get an
25 attorney.

1 THE COURT: Well, it would be a good idea if you did.
2 MS. SANTANGELO: I really wasn't able to at this time.
3 I have made phone calls to try to find an attorney.
4 THE COURT: Okay.
5 MS. SANTANGELO: The reason why, when they called and
6 they wanted to make a settlement, I no longer have that
7 computer that the IP address was on, that they say the music
8 was downloaded onto, because it had developed a major -- a lot
9 of major viruses, apparently, and was wiped out and taken by my
10 ex-husband. He was going to try to get it fixed. And I guess
11 he has it down in North Carolina right now. So, at the time, I
12 have nothing in front of me to say, okay, this is what
13 happened. And I have five children, so I wasn't real sure how
14 it had happened, to be honest.
15 THE COURT: I have some guesses.
16 MS. SANTANGELO: I realized when I looked at this that
17 the downloads, I guess they call it Exhibit B, the screen name
18 that this Kazaa was under doesn't belong to anyone in my
19 family. And that's most likely why I was never notified by AOL
20 or any of my -- the companies that I have online service with
21 that my children had downloaded anything. Apparently, it
22 belongs to a friend of my son, who is now 14.
23 THE COURT: I see.
24 MS. SANTANGELO: And I didn't know about it. And I
25 really don't know where to go from here. And so I'm a little

1 dumbfounded by the whole thing.
2 THE COURT: Yes, I know. I keep saying I live in --
3 although I've read the riot act to my own kids a hundred
4 times --
5 MS. SANTANGELO: Oh, yeah, now I have.
6 THE COURT: -- I live in perpetual fear that something
7 I don't know my kids are doing is going to come back and bite
8 me in the butt. And the difference between you and me,
9 Ms. Santangelo, if it happens to me, it will be in the
10 headlines of the New York Post.
11 MS. SANTANGELO: That's true.
12 THE COURT: Right.
13 So, anyway, you have my sympathy. I mean, I can look
14 at this list and I can look at you and I can see that you
15 weren't the person who downloaded these pieces.
16 MS. SANTANGELO: Right.
17 THE COURT: Right. So, okay.
18 And the download dates here are what?
19 MR. MASCHIO: They captured her files as of -- there
20 is a November date, your Honor.
21 THE COURT: And the computer has been in North
22 Carolina.
23 MS. SANTANGELO: Well, I moved, and I think that was
24 the problem. I moved in -- June 30th of last year from
25 [omitted by editor] to [omitted by editor]. At that time, I had

1 cancelled my account with Optimum Online. So that was another
2 reason I didn't really understand what was going on, because I
3 didn't have an IP address anymore. So I guess that's why it
4 took so long for them to find me.
5 THE COURT: Okay. Well, I think it would be a really
6 good idea for you to get a lawyer, because I would love to see
7 a mom fighting one of these.
8 MS. SANTANGELO: Okay.
9 I think my biggest issue is, honestly, not with the
10 record company as much as it is with this company called Kazaa
11 that allowed them to do this in the first place. I really
12 can't believe it. And I just, obviously, in the last week,
13 started studying about it, you know. I've never really looked
14 into it before, but --
15 THE COURT: Yes, that, I can well understand.
16 MS. SANTANGELO: -- that it could even be allowed to
17 do in the first place. It's just mind-boggling.
18 THE COURT: Okay. Well, I don't know if you have, for
19 example, a friend who is a lawyer or anything.
20 MS. SANTANGELO: You know what my question is? What
21 type of lawyer? Because I'm so confused. I spoke to one
22 that -- one lawyer last week who said he didn't handle I guess
23 civil cases or --
24 THE COURT: Yes. Or maybe he didn't handle copyright
25 infringement cases. But this is a fairly simple and

1 straightforward civil case. And I think pretty much any -- I
2 mean, I'm not allowed to recommend lawyers to people, but I
3 think pretty much any general practice lawyer who does a little
4 bit of this and a little bit of that could do a little bit of
5 this.
6 MS. SANTANGELO: Right. I mean, my problem was I
7 am -- I mean, there was one lawyer, and it's just that I just
8 didn't have the money to give him up front at this time.
9 THE COURT: Right, right. This also is a problem.
10 So, in any event, I'm going to put this over for 60
11 days to give you an opportunity.
12 MS. SANTANGELO: Thank you.
13 THE COURT: And I'm going to enter on the record
14 what's called a general denial on your behalf --
15 MS. SANTANGELO: Okay.
16 THE COURT: -- which will relieve you for the moment
17 of the need to file an answer. So he won't file a motion for a
18 default judgment in a couple weeks, because I don't want a
19 motion for a default motion in a couple weeks.
20 MR. MASCHIO: Can I be heard for a moment, your Honor?
21 THE COURT: You can be heard all you want.
22 MR. MASCHIO: It would be helpful to resolve this case
23 if the defendant would put in, under oath, a denial in writing.
24 THE COURT: Fine. But I'm going to give her some time
25 to find a lawyer.

1 MR. MASCHIO: That's okay. We would just like -- we
2 think it's appropriate for her to say, yes, I did this or, no,
3 I did not do this under oath.
4 The other thing is that --
5 THE COURT: First of all, you didn't file a verified
6 complaint, and she doesn't have to file a verified answer. So
7 she doesn't have to do anything under oath.

8 MR. MASCHIO: Well, okay.
9 THE COURT: I'm going to give her 60 days to find a
10 lawyer. And she's not in default. And she will not be in
11 default if there is no answer, because, right now, there is a
12 general denial on the record for her. Okay?
13 MR. MASCHIO: Okay.
14 The other thing, your Honor, I don't know if you want
15 to do this. I brought a consent scheduling order.
16 THE COURT: No. I don't want to set a scheduling
17 order. In fact, I don't want anything to happen in this case
18 for a while.
19 MR. MASCHIO: Okay.
20 THE COURT: I'm in no hurry to see this case resolved.
21 So far, Mrs. Santangelo has raised enough issues, including the
22 use of a screen name or an account name -- not hers, but some
23 other person's -- that suggests that she might have some really
24 interesting defenses to this. And there are defenses that
25 maybe even ought to be litigated. The whole concept of a young

1 person using the parent's computer access is bad enough, but if
2 this name is not hers, she doesn't pay for this account.
3 MR. MASCHIO: They wouldn't have brought the action,
4 your Honor, if they hadn't verified that very carefully.
5 THE COURT: Well, we'll see, won't we? We'll see.
6 And if what she's telling me is wrong, I won't be very happy
7 with her.
8 So let's set another conference date for July 8th at,
9 say, 10 a.m. And hopefully you will have an attorney by then.
10 And if you get an attorney, you need to put the attorney in
11 touch with Mr. Maschio, and maybe you will get this thing
12 resolved.
13 MS. SANTANGELO: Mr. Maschio's --
14 THE COURT: He will give you his business card.
15 MS. SANTANGELO: There is more than one group here.
16 MR. MASCHIO: I'll give her my card, but our
17 instructions are for these people to deal with the conference
18 settlement center. They had discussions.
19 THE COURT: I'm sorry. Your instructions from me, the
20 Judge --
21 MR. MASCHIO: Okay.
22 THE COURT: -- are that, if she appears with a lawyer,
23 her lawyer will deal with you.

24 MR. MASCHIO: Oh, absolutely, your Honor.
25 THE COURT: Otherwise, you take your action and you

1 file it in front of an arbitrator.
2 MR. MASCHIO: No, all I was suggesting, your Honor, is
3 that, if she doesn't come with an attorney, that the more
4 direct way of doing this -- and this is just to facilitate
5 things -- is to deal directly with the conference center.
6 THE COURT: Not once you've filed an action in my
7 court.

8 MR. MASCHIO: Okay.
9 THE COURT: You file an action in my court, your
10 conference center is out of it. They have nothing to do with
11 anything.

12 MR. MASCHIO: Okay. I'll give her my card.
13 THE COURT: If you are here, you are here as an
14 officer of the court. You're taking up my time and cluttering
15 up my calendar, so you will do it in the context of the Court.
16 Maybe it will be with a magistrate judge, but you will be
17 representing your client, not some conference center. And if
18 your people want things to be done through the conference
19 center, tell them not to bring lawsuits.

20 All right, so 10:00 on July 8.
21 And as I say, if you hire an attorney, you have him
22 get in touch with Mr. Maschio, and you will see if it can be
23 resolved; and if not, then, when we come in here, your lawyer
24 will file a formal answer on your behalf and we'll set up a
25 schedule.
[...]

(bold markings by me, leftouts by me, editor editing arleady present in the source file I used)