Recording Industry vs The People: Memoranda of law in Arista v. Limewire

Thursday, July 24, 2008

Memoranda of law in Arista v. Limewire

Plaintiffs finally did get around to filing a memorandum of law, four (4) days after the filing deadline, in Arista v. LimeWire.

Here are the copies of the memoranda of law I have been able to find:

Defendants' first memorandum of law
Defendants' second memorandum of law
Plaintiffs' memorandum of law

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

5 comments:

Unknown said...: I love the RIAA. If I miss a deadline by four days, I start checking that my resume is up to date.; July 24, 2008 at 3:58:00 PM EDT
Anonymous said...: Blaming LimeWire for the actions of their users would be like suing Microsoft because someone typed up a bank robbery note – or perhaps more appropriately typed up copyrighted lyrics – using Microsoft Word. Microsoft is clearly not libel for the actions of their users of their program, a program which has substantial non-infringing uses, and as much as the recording industry may wish otherwise, neither is LimeWire.

If LimeWire were guilty, what comes next? Microsoft whose Windows operating system actually hosts the LimeWire program and actually controls the writing to the hard drive of the infringing files? Without Windows enabling it, no LimeWire. Dell and HP who built the computers that run the Windows operating system which hosts the LimeWire program? Bose who built the speakers which are plugged into the computer built by Dell/HP running Microsoft Windows which hosts the LimeWire program and are used to listen to the infringing content? Sony/Phillips who built the CD drives used for the original ripping of the CD's that feed the LimeWire program which...and which are used by the downloader to burn the infringing files to CD? Verbatim/Sony who produce the blank CD-R media which is put in the CD drives to burn the infringing files downloaded...

The problem is obvious here. There is no law to address this issue as the recording industry would like and the recording industry is trying to create their own law to fill in the gaps. This is perhaps because the actions that the recording industry is complaining about are distributed across many people, and the individual pieces may not be actionable in any reasonable manner.

And because it's too much trouble to go after millions of filesharers, a number of whom would vote in better Congressional representatives if annoyed by this campaign too much, that leaves the recording industry trying to choke off the tool makers in the misguided belief that they can make writing of P2P programs too hazardous for future programmers to even attempt. Unfortunately for them, this is not how a proper democracy operates, nor do computer programming rebels respond well to fear in this manner.

So why is the second Defendant's Memorandum of Law redacted? The table of contents looks fascinating, and hardly subject needing to be hidden from the public.

The Plaintiff's Memorandum of Law is truly not worthy of response. It is 46 pages of whining, devoid of any facts to back it up, that infringement is happening on a massive scale and that LimeWire is completely guilty for every bit of it. They say that logically this had to have happened so we don't really have to have those pesky, hard to discover, facts to actually back us up in this. Just take our word, Judge, that all this has gone down exactly as we describe it and don't make us actually have to go to trial.

{The Common Man Speaking}; July 24, 2008 at 5:20:00 PM EDT
Alter_Fritz said...: what I find noteworthy and love, is how defendants are putting in their stuff that they are of sound mind.

So far I have not once seen such claim in any of those "under penalty of perjury"-thingies by the well known record companies or their lawyers.

Is it reasonable for me to conclude therefore that they are afraid to commit perjury when they would claim such a thing?

Being of sound mind i mean...
;-); July 25, 2008 at 1:28:00 AM EDT
Anonymous said...: Is there anything to this case other than the two questions of whether Limewire has significant noninfringing uses and whether it explicitly encourages copyright infringement? -dp; July 25, 2008 at 10:30:00 AM EDT
DreadWingKnight said...: Regardless, with Arista's memo being late, I'd say move to exclude it for failure to file in a timely manner.

If they want the rules enforced on their opponents, they NEED to EXPECT the rules enforced on them.; July 25, 2008 at 8:34:00 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