Monday, June 16, 2008

RIAA responds to letters in Cassin cases

In Warner v. Cassin, and its new companion case Warner v. Does 1-4, the RIAA has responded to the June 12th letters submitted by defendant's lawyer.

June 16, 2008, Letter of Victor B. Kao to Hon. Charles L. Brieant
June 16, 2008, Letter of Timothy Reynolds to Hon. Stephen C. Robinson

Commentary & discussion:

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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:

Joe said...

Ray -

The case cited by the plaintiffs as barring dismissal here does not. In the case they cite, the first dismissal was by STIPULATION., which the second circuit ruled was NOT a unilateral act by the plaintiffs. Not the case here.

"The danger of such abuse diminishes, however, where the first dismissal is by stipulation. A dismissal by stipulation is not a unilateral act on the part of the plaintiff but rather is a mutual agreement by all the parties."

"Consequently, we [*1018] hold that the filing of a notice of dismissal preceded by a dismissal by stipulation knowingly consented to by all parties does not activate the "two dismissal" bar against bringing an action based on or including [**17] the same claim."

534 F 2d 1018!

Go get em!

Joe

Charles said...

"Plaintiffs also learned, from their own continued investigation, that other individuals resided in Defendant's household, including an individual with initials that match the username at issue, omc@KaZaa."

This may be quite obvious to all the lawyers out there, but if they know who did it, then how is it that they're suing 4 John Does?

Anonymous said...

If the RIAA is to be believed here, all you have to do to get your case dismissed is say through your lawyer, "I didn't do it." Then then immediately dismiss your case and (trusting to the efficiency of the U.S. Postal service) notify of you of this by First Class mail. What could be simpler?

XxX

Ray Beckerman said...

That's a big "if".

Matt Fitzpatrick said...

Well, I guess this is all academic unless and until Ms. Cassin decides to seek fees and costs. Probably the only thing Ray can do right now is track down a copy of the Doe suit and insist that the dismissal of Cassin I be with prejudice, leaving the door open for costs and fees.

I noticed the case Mr. Bao cites doesn't seem to support this claim: "A defendant who was not actually named as a party in prior actions may not invoke the two-dismissal rule..."

In Las Vegas Investors Group v. Pacific Malibu Dev. (933 F.2d 724) (9th Cir., 1991), the plaintiff-appelants lost the appeal; the 9th affirmed the district court's dismissal based on the two-dismissal rule. I think the legalese word for this is "dictum." Also, Law Vegas v. Pacific concerned two corporately related defendants being sued in separate actions, not an individual being sued as a Doe then under her true name in separate actions. I think the legalese word for this is "inapposite."

Igor said...

"Plaintiffs also learned, from their own continued investigation, that other individuals resided in Defendant's household, including an individual with initials that match the username at issue, omc@KaZaa."

Wow, they are real private I's! Took them this long to figure that out?

Also, I guess their argument there opens up the "it wasn't me, it was someone else stealing my internet" defense.

Albert said...

I notice that they seem to ignore that this is the SECOND time that they have sued and dismissed. In their letter they state a BIG UNTRUTH: "Here, there has been only been only one dismissal against Defendant - i.e,, the dismissal of this case on May 27, 2008. Thus the two-dismissal rule has no application here. "

Clearly this is FALSE, and they admit it in the letter. They state the truthful statement that the current case was filed because of information received from Verizon Internet Services. They admit they got that info from Verizon identifying the person whom they have sued, but seem to forget that this information was turned over to them ONLY because of a Discovery Order they obtained from suing that SAME defendant as a Doe in case # 1.

They seem to believe that the Same Defendant was NOT sued in the first (Fishing Case) and second case dismissed on May 27, 2008 merely because they did not use her name in the first case, referring to her as "John Doe". One of the "John Does" WAS the the same as the defendant in case #2. They seem to imply in the statement below that because she was not actually "named" in case #1, that she was not in fact sued in case #1.

Their other quote: "A Defendant that was not actually named as a party in prior actions generally cannot invoke the two-dismissal rule to bar a third action, even if the third action is based upon the same claim." They seem to be implying the Defendant in case 1&2 has no standing to challenge Case #3, because she is not named in that case.
Of course the filing a motion to dismiss on behalf of one of the new Does would put that arguement to rest.

Of course, since the Defendant WAS in fact named in both cases (In the first one as John Doe, and the second one by her name.) Their case law quote does not work.

They do not seem to understand the simple fact that BOTH case 1 and case 2 were BOTH dismissed before an answer by the unilateral actions of the Plaintiff. They seem to forget about their first dismissal in their arguments. The rule CLEARLY states 2 dismissals = GAME OVER. A review will clearly indicate that 2 dismissals were taken, so this is their tough luck.

If they had followed the rules, filed 1 John Doe case, amended that case to include the Defendant's name, then moved the court to allow additional defendants does 1-4 to be added to such original case, there would be no problem and no dismissals at this point. The Plaintiffs have gotten themselves into this pickle solely because they have been playing games with dismissals.

I went back and reviewed the Memorandum of Law that was filed on the dismissal motion on 7/10/2007. For the Plaintiffs to claim that Defendant did not deny the Plaintiff's case until May 27, 2008 is clearly false, as a denial of their entire case is the subject of that filing.

Albert

Macros said...

I'm confused.

In their letter to the Hon. Charles L. Brieant, the RIAA state that they notified Ms Cassin's counsel that they were filing a Motion for Leave to take Expedited Discovery. If the Doe is unknown, why would they serve the motion to Ms Cassin's counsel?

If they have the initials of the Doe (OMC) wouldn't they be able to figure out who it is? They obviously seem to have an idea that it's one of Ms Cassin's children (I assume).

I don't get what's going on here. If they know who it is, why is the person a Doe?

Cameron.

Albert said...

Cameron,

The 4 Does are members of her family.

They are serving her notice because what they want in discovery is Ms Cassin's computers and hard drives. They allege someone else in her family used them to violate their copyright, and thus want to be able to use Ms Cassin's Computers against her family.

However, since Ms Cassin is NOT a defendant, I assume that they would be required to pay her reasonable costs of production. I would also hope it would also include some kind of agreement to have it examined by a neutral third party, since they have gone thru browsing history and resumes and other non song, non p2p files before.

She should insist the examiner be given a list of the items they seek, and that ONLY those items be produced. There are too many private things on computers to just hand it over. Thus, I hope she insists upon a protective order.

Of course an outright dismissal is what should be given to this case, as I previously outlined.

Albert

Lior said...

For all its originality, the RIAA's argument is not bad: if Ms. Cassin did not, in fact, commit the alleged infringements then ipso facto she was not the John Doe from the fishing expedition lawsuit. Thus she was only sued once, while that "John Doe" is facing his second lawsuit. Note that under their theory they can keep suing and dismissing until the charge sticks to someone.

Mr. Beckerman's argument is different: since Ms. Cassin was sued based on the information developed during the original John Doe case, that case should be thought of as about her.

Ray's argument certainly is truer to the purpose of the rule, while the RIAA's argument is truer to the wording of the rule. We'll see which approach the court takes.

Perhaps in the next filing Mr. Beckerman can also note that if the RIAA's (still ongoing!) investigation is at such a stage that its target keeps changing, then it is a bit odd that they are now filing the their third lawsuit based on the same underlying conduct. This really looks like a case of "sue them all; the Judge will know which ones belong in his courtroom".

Igor said...

lior wrote: "if Ms. Cassin did not, in fact, commit the alleged infringements then ipso facto she was not the John Doe from the fishing expedition lawsuit. Thus she was only sued once, while that "John Doe" is facing his second lawsuit."

I disagree with this because the original law suit alleged that the owner or the IP address is the infringer. Since according to the ISP Ms. Cassin was/is the owner of the IP address (at the time the RIAA saw infringement) I would wager the first suit was against her and not the infringer. After all they claim that the owner of the IP is the "true" defendant...

If that's not the case then they just proved everyone of their other cases false. In fact, it might be smart to site this in all other cases showing how their methods are failing.

Anonymous said...

As others have noted, the RIAA claims here that a case against a different person with the same facts is an unrelated case - a far cry from suing multiple Does on multiple facts. Anyone involved in a multi-Doe case should bring these letters to their respective court's attention.

Q

Alter_Fritz said...

Practice tip for Mr. Kao allone

please be more carefull in further filing with your throwing around when a case is "related" and when not!
YOUR filings are ruining the strategy for your collegues in a different district in NY where the "related" case designation shows the world very imaginative explainations what is "related" and what not.

"It's is done by a human? All humans [excluding the gene degeneration that forked the vultures!] are the same species! Tag all cases as "related"

Careful Mr. Kao you ruin your peers argument with your actions!

Alter_Fritz said...

P.S: Oh I see the HRO guy (I alledge from the faximile of the signature its Timothy] has coppied Mr Koas argument too [ or could it be the other way round :-P ]

Anyway, So Timothy my practice tip goes to you then too!
you guys should work more on getting your arguments straith: Make your minds up! Related or not, responsible or not identified by ISP as the infringer but we say person is not ect.
It all starts to comming "bite you in your back" as judge Mahon coint it in her first talking with the Santangelo defendant back a few years!

When will Mr Kao start naming the pet of the cassin's in an amandmend to the doe case?

http://recordingindustryvspeople.blogspot.com/2007/09/reprint-of-march-4-2007-foxtrot-comic.html

*SCNR*
(and i'm playing with my 3 rule violations I have won!)

Anonymous said...

In the 4th Circuit at least, a Doe action count to the twice dismissed rule.

914 F.2d 44

Anonymous said...

Is Ms. Cassin a non-party because she has been sued and had the case against her dismissed twice and the RIAA hasn't named her in this third suit?

Or is she a party they aren't naming yet (hiding behind a Jane Roe fig leaf)?

Where this becomes of importance is the assumption that it is her computer that the RIAA is attempting discovery against.

If she is named a third time then the case against her should be dismissed immediately. After the second case she should have been considered the prevailing party.

If she is not party to this suit, but is the computer owner, then the RIAA is attempting discovery against a non-party which, from the Lindor case reported here, would appear to require different procedures and responses.

It appears to the common man that the RIAA is intentionally trying to obscure the issue of just who they are suing in order to play both sides of this fence and get to the computer in question before these questions can be sorted out properly. Of course, once the RIAA has their hands on that data that cat is out of the bag, the horse is out of the barn, and you will never get those worms back into that can because you can never take it back away from them again no matter how un-entitled they are to it!

{The Common Man Speaking}

Alter_Fritz said...

That's a real good example/quote and worth to be repeated in bold since it IMO show exactly the attitude those Label scapegoat lawyers demonstrate toward Judges/Courts!

This really looks like a case of "sue them all; the Judge will know which ones belong in his courtroom".

Thank's lior for that one! :-)

Anonymous said...

It suddenly occurs to me that this is an attempt to end-run around the discovery issues they have in all the other cases by making a motion for discovery of identity of "infringers" rather than discovery of the computer itself for evidence of infringement. Although the information they seek is the same, the reasoning is different.

I'd bring this reverse tactic to the attention of the courts, and limit the discovery. In fact, I'd argue that anything beyond 'identity' that the RIAA gets if they win this motion is not admissible.

I'd also be suggesting that the Plaintiffs already know the identity of the "infringers" (as they suggest in their documents). As a consequence, if they already know the "infringers", then this "who am I suing" discovery is unnecessary.

(lastly, it looks like the most recent posts only show up in the rss feed, and not on the front page).

Q

Matt Fitzpatrick said...

lior wrote:

> ... if Ms. Cassin did not, in
> fact, commit the alleged
> infringements then ipso facto
> she was not the John Doe from
> the fishing expedition lawsuit.

Interestingly enough, my family received an email from an MPAA lawyer, concerning a Doe case, stating that the Internet account holder was the intended defendant. (Our ISP had given them invalid information, and we declined to provide the information.) So I can assure you that the RIAA/MPAA are primarily interested in finding the Internet account holder, and not necessarily the actual infringer, at the Doe stage.

Remember, 1) the RIAA method originally suggested that account holders are on the hook for indirect infringement, even if they are not the direct infringer, and 2) the RIAA dismisses every Doe case without receiving any information other than an ISP identification of the account holder.

For these reasons, it's simply beyond belief if the RIAA is truly claiming that the account holder is not the intended defendant in every Doe case, including Ms. Cassin's.