In Arista v. Does 1-9, the Columbus, Ohio, case in which the Magistrate Judge had dismissed and severed as to John Does 2-9 due to their misjoinder, but granted the RIAA's motion for discovery, the District Judge sustained the rulings of the Magistrate, over objections from both sides, in a July 29, 2008, decision.
Now the RIAA has filed a Notice of Dismissal Without Prejudice.
July 29, 2008, Decision affirming Magistrate Judge's rulings
Notice of Dismissal Without Prejudice
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
6 comments:
Plaintiffs raise the possibility that the same person could have been responsible for more than one of the alleged infringements occurring at the nine separate IP addresses listed in the complaint. The Court finds that this issue will be easily clarified once Ohio State University responds to the subpoena. If the subpoena response identifies nine separate individuals for the nine IP addresses, Plaintiffs will then be ordered to sever Doe Defendants 2-9.
Excuse me, but am I the only one who finds this completely stupid? The judge is going to force Ohio State to turn over the information and only then determine if the non-related Does are to be severed from the case. Since the RIAA will dismiss this case the moment they have the information in their hands what is the point of all this?
Pursuant to FED. R. CIV. P. 41(a)(1)(A)(i), Plaintiffs ARISTA RECORDS LLC, et al., by and through their attorneys, voluntarily dismiss this case without prejudice, each party to bear its/her own fees and costs. The Clerk of Court is respectfully requested to close this case.
This also makes no apparent sense. If the case against the Does is dismissed at this point because the Plaintiffs (for the moment) have cut and run, why should any Doe who hired a lawyer or otherwise incurred costs in regard to this have to pay for the RIAA fishing expedition. Any Doe here should be going after the RIAA for all their legal fees to date and not let the RIAA get away with this. They should be demanding dismissal with prejudice!
Does the court truly understand just what has been going on here? This judge would seem not to.
XxX
XxX,
The first one, waiting until Ohio State responds is because the Plaintiff's have alleged that some of the 9 John Does were the same person. If in fact any of the John Does were the same person, the rules would allow them to be joined.
You are absolutely correct that this is stupid, because in effect they are receiving exactly the information they seek by the mis-joinder.
In this case, the RIAA got their way and got away with exactly what they wanted, the identity of ALL NINE John Does. The Order allows the RIAA to receive this info.
Since they always dismiss the John Doe case after getting the names, they in effect got away with violating the rule.
To prevent the game playing, the Judge should have ordered Ohio State to respond to one question: Are any of the last 8 John Does the same as John Doe # 1, and if so which Doe(s). Once that question was answered, everyone other than Doe # 1 and any other Doe that is the same as Doe #1 should have been dismissed and the RIAA NOT provided any information in regard to those Does until an INDIVIDUAL lawsuit was filed against that Doe.
As for the second part, this is the RIAA's normal MO. Since the RIAA has the names, they will first go after the Does with their collection agency, and ONLY if the people refuse to settle will they actually re-file a actual SERVED complaint against that party.
They should have not gotten away with this. I would love to see the Judge in this Court order the RIAA to not use the extra names, since they have FAILED to comply with His Order by NOT severing Does 2-9 as they were ordered.
I understand they can dismiss at this time, but they should have severed first before doing so, as they were ORDERED to do so. Can they be sanctioned for not following the Court's order?
Maybe a good Offence is a good Defense here. One or more of the Does should consider filing a Declaratory Judgment Action against the Record Companies involved in the original Doe action. Unlike a Counterclaim, it would be a lot harder for them to get a direct action dismissed, and could refuse to accept any dismissal of that action except with prejudice.
Albert
The court let discovery proceed before enforcing a major and necessary procedural overhaul, i.e. severing obviously misjoined parties, soon to be either non-parties or non-existent parties? I guess the court wasn't informed that this Doe lawsuit, like the hundreds before it, was filed only to co-opt the judiciary as a subpoena mill, with no intention of serving the defendants.
On the bright side, at least two of the defendants appear to know and value their due process rights. Here's hoping the situation improves for them.
I would expect that most users share roughly the same files over a period of time. That list may be added to as additional music files are acquired, or reduced as listen-once songs that they never would have bought are culled, but substantially the shared library of a give user will remain somewhat static until they run out of disc space and need to take items off-line.
Of what relevance is this? The RIAA should be able to have determined with some reasonable degree of probability if they were seeing the same user at different times. The contention that different Does represent the same user who should not be severed should have required a reasonable suspicion ("See Judge, here are the same files time after time") based on files shared.
In fact, without this evidence, the RIAA scammed the judge into giving them everything they wanted with this phony argument.
In truth, something we see little of from the Plaintiffs in these cases, I would expect them to NOT file multiple actions against someone they suspect as the same user multiple times. What's the point of multiply suing the same person for the same act.
OH RIGHT! With this type of joinder it doesn't matter if they sue the same person under a hundred different Doe numbers because it costs them exactly the same!
Of course it costs the university a lot more to look up so many more IP/time-stamp combinations in their logs, but we already know that the RIAA doesn't feel that this is any sort of undue burden on them.
It's all so clear now!
XxX
When XxX said "The contention that different Does represent the same user", it made me think that if I were the judge I would be asking the RIAA lawyers questions like "Do you not have your facts straight such that you really have no idea who you are suing?", "Why are you supposedly suing 9 different does in the suit when only at most a couple of people are involved?"
This man believes what should have been said to this judge, and all judges in these initial multiple John Doe cases, is:
"You Honor, the Plaintiffs have no intention of seeing this case through to its legal conclusion. As such, they will not be held responsible for their extra legal tactics at trial because this case never will proceed to trial. This is simply a ruse on their part to gain access to information that they they shouldn't have, and they are attempting to make you an unwitting participant in it. You should not release any information, or permit any discovery, for a trial that will never happen."
{The Common Man Speaking}
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