Recording Industry vs The People: Linares declaration evolving to evade detection?

Sunday, August 24, 2008

Linares declaration evolving to evade detection?

One of our readers, who wishes to be known only as "Concerned Citizen", did an analysis of the Linares declaration filed recently in LaFace v. Does 1-7 in Michigan, comparing it to the Linares declaration used in an earlier Michigan case, LaFace v. Does 1-5. These were Concerned Citizen's findings:

There are some changes that have been made in the Carlos Linares Declaration from last September 11. 2007 (LaFace v. Does 1-5 NMU) and the Current July 8, 2008 LaFace v. Does 1-7 U of M. version. They include the following changes.

(1). "I am an attorney and...", to Linares opening statement. Not a big surprise , but per Michigan's new Professional Investigator law, the attorney needs to be licensed to practice law "in Michigan" in order to exempt an investigator for the requirement of licensing.

(2) the Addition of "Allows users to further distribute files to other users..." in paragraph # 7 section 4

(3) the addition of "In some cases more that one computer can access the internet over a single IP address by using Network translation..." in Paragraph 12 page 5

(4) Removal of the word "Illegal" and "downloaded music files" from the most recent declaration Paragraph 15. In the September 2007 version as Linares referred to the copies as "Illegal copies of sound recordings", but that language has now been changed to "copies of sound recordings" (the word Illegal does not appear in the most current declaration anywhere that I could find)

(5) Replaced the term "Offered for download" and "were offered" with "Distribute" the new boilerplate language.

(6) Added a new paragraph # 24 to the mix claiming that "...Fourth, computer evidence by its very nature is subject to being overwritten. At times, plaintiffs have sought evidence from defendants computers only to find that the evidence of infringement was destroyed (intentionally or unintentionally). Expedited discovery is critical to allow Plaintiffs to put Defendants on notice of the need to preserve the electronic evidence and avoid the loss of evidence.

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 portable music player

8 comments:

DreadWingKnight said...: Curiouser and curiouser.

Almost sounds like they're hiding something.

It's definitely worth bringing the changes to the attention of the court.; August 25, 2008 at 5:41:00 AM EDT
Anonymous said...: I don't understand. It sounds like Linares is simply fixing weak points from his old declarations. This is worth noting if you're a defendant under an old declaration, I imagine, since you'll want to attack the old weak points. But I don't know what you mean by "evade detection".

XYZZY; August 25, 2008 at 8:50:00 AM EDT
Anonymous said...: I don't see how the new version of the Linares declaration solves RIAA's problems with SafeNet f/k/a MediaSentry because he still says that RIAA hired the investigator, not him as an attorney. Also, in paragraph 18 he still claims RIAA listened to the files and confirmed they were "illegal copies," which is ludicrous since they have no technical way of doint that. They have never demonstrated that any file they saw in a shared folder was unlicensed. See Bestavros declaration in Arista v. Does 1-21, D. Mass. In that case, in spite of many pleadings following the Bestavos declaration and related pleadings by Doe, RIAA has never even tried to refute Bestavros's opinion. Yet they go on la de da making the same false statement in all of the Linares declarations. Over the eyes of how many more judges can they pull the wool and get them to sign the expedited discovery orders?; August 25, 2008 at 12:10:00 PM EDT
Igor said...: I wouldn't use the word "evolving" as much as I would say "intelligently designing" :); August 25, 2008 at 3:20:00 PM EDT
Scott said...: igor: No politics please. :) (rofl); August 25, 2008 at 3:47:00 PM EDT
Anonymous said...: Ray,

I think paragraph 4 in the "new" declaration is more troubling for Mr. Carlos Linares.

If I understand the paragraph under the rules of English grammar, it appears Mr. Linares is admitting participating actively in the investigations.

If this is so, and Mr. Linares, is not a licensed attorney in in the state the defendants reside, I believe a Private Investigators license would be required. For MI, CA and Washington, D.C., none of the BAR's have any record of a licensed attorney by the name of Carlos Linares.

If Mr. Linares, is an attorney, doesn't he need to state where he is licensed? In order to submit an affivadit in a state he is not licensed in, doesn't he need the Court's permission prior to appearing?

Inquiring minds have questions for Mr. Carlos Linares.

Regards,

blhseawa; August 25, 2008 at 7:21:00 PM EDT
Anonymous said...: To follow up on blhseawa,

When MediaSentry investigates, there is no case in existence. Only *after* it finds data and gives it to the RIAA is a suit filed. So at the time of the investigation, even if Linares is overseeing (which he does not claim), it's impossible for him to be acting as an attorney. Not that that matters, since he states MediaSentry doesn't work for him.

-grue; August 26, 2008 at 8:10:00 AM EDT
Anonymous said...: If these cases go to Court, at least one or more of these unlicensed investigators are going to have to show up at the Federal Courthouse in Michigan to testify.

I would love to see them get arrested at the Court House. After all, my understanding is that unlicensed investigation is a criminal offense. Their sworn statements in these cases will go a long way in proving that the Michigan PI laws were being violated.

Albert; August 27, 2008 at 12:44:00 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