Tuesday, October 28, 2008

Prof. Nesson of Harvard Law School takes on the RIAA in court in SONY v. Tenenbaum

Prof. Charles Nesson of Harvard Law School, an outspoken critic of the RIAA's litigation campaign, who once assigned to his Evidence class the job of drafting a motion to quash an RIAA "John Doe" subpoena, has gone to bat for an RIAA defendant in Boston, entering a case in which he will be taking the RIAA on directly, squaring off against Timothy Reynolds, Eve Burton, and Laurie Rust, the same Denver, Colorado, lawyers trying to dismiss UMG Recordings v. Lindor in Brooklyn.

The Massachusetts case is SONY BMG Music v. Tenenbaum, one of the hundreds of cases consolidated in Boston under the caption London-Sire v. Does 1-4.

On Mr. Tenenbaum's behalf, Prof. Nesson has filed an amended counterclaim, interposing counterclaims against the plaintiff record companies and against the RIAA itself, for both federal and state abuse of process.

Additionally, he has moved for a protective order with respect to the RIAA's request for a hard drive examination, and opposed the RIAA's motion to dismiss counterclaims.

According to court records, Prof. Nesson was assisted by law students Shubham Mukherjee and Nnamdi Okike in preparing his brief opposing the RIAA's motion.

Plaintiffs' Memorandum in Support of Motion to Dismiss Counterclaims
Defendant's Protective Order Motion for Hard Drive Inspection
Defendant's Opposition to Plaintiffs' Motion to Dismiss Counterclaims
Defendant's Amended Counterclaims
Defendant's Motion to Add RIAA as Additional Defendant on Counterclaims

[Ed. note. Among other things, Prof. Nesson is the lawyer who argued the famous Daubert case which established the Daubert reliability factors. So it should be quite interesting to see what he does with Dr. Doug Jacobson, the RIAA's so-called 'expert', or with the MediaSentry characters, who deny that they are experts (when trying to evade expert witness disclosure), but claim to be experts (when trying to avoid jail time for engaging in investigation without an investigator's license). -R.B.]

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Keywords: lawyer 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

21 comments:

Justin Olbrantz (Quantam) said...

And a number of four-letter words were heard in the RIAA board meeting.

Anonymous said...

This man applauds the taking of a theoretical assignment out of the classroom to see how it fares in the real world. If the RIAA won't go to Harvard, then Harvard will go to the RIAA.

(Perhaps former head of the HLR, current presidential candidate Barack Obama, can write an article about the outcome.)

Certainly a great lesson will be learned by all through this exercise.

{The Common Man Speaking}

Anonymous said...

This man notes with considerable amusement the term "mirror image" as applied to making disc image copies of hard drives. A mirror reverses everything reflected in it, leading one to conclude that a "mirror image" would be one with all 0 and 1 bits inverted into 1 and 0 bits.

{The Common Man Laughing}

Anonymous said...

Is the the Memo in Opposition to the Motion to Dismiss that you posted, the same copy as filed with the Court? In contrast to the other three, it is unsigned and in a different font. Just curious.

Anonymous said...

So Charlie Nesson (see Judge Gertner's reference in the transcript) did come to the aid of the defending party. And what well written briefs too! Let's hope that they gain some traction with the judge.

It would be interesting to see the complaint, answer and affirmative defenses too.

ChrisP

Anonymous said...

This man finds so much to comment about on this subject. Particularly damning is the following from Defendant's Opposition to Plaintiffs' Motion to Dismiss Counterclaims.

Massachusetts maintains a low standard for what constitutes process: it includes “the mere institution of a civil action to achieve a collateral purpose other than winning the lawsuit.”

This alone should have shot down every multi-John Doe ex parte suit filed for the sole purpose of revealing anonymous users identification information based in IP address and timestamp information, and then dismissed immediately afterwards. No lawsuit should have ever reached the stage that this one already has.

And from Defendant's Motion to Add RIAA as Additional Defendant on Counterclaims.

Defendant Joel Tenenbaum respectfully requests the Court to join the RIAA as a required defendant to Defendant's counterclaims...

The RIAA should be joined in addition because they are the ones who actually hired MediaSentry and they are the ones who need to be called to account for that shoddy and completely illegal investigation in court – along with their expert hearsay witness Carlos Linares.

{The Common Man Speaking once more}

Ray Beckerman said...

Dear anonymous, if you'd like to go on PACER and get me a better copy, it would be much appreciated.

Albert said...

This I think will be a MAJOR boo-boo for the RIAA. This attorney will likely attack like a bulldog and is very unlikely to settle or allow them to dismiss the case, because of all the counterclaims. I am glad this Doe has very good help.

They just discovered the hazards of suing without knowing their opponent, in this case it will likely turn out to be a very bad mistake.

The only FOOT-GUN I can think of that would be bigger than this one would to sue the son/daughter of a Senator. The defense to the suit may not be any better than the average case, but if that mad Senator were to go back and amend the Copyright law to allow P2P non-commercial copying, that person could win simply because the law was changed....

Lets roll those dice RIAA, I want to see you nail a Senator's Family........

Albert

Justin Olbrantz (Quantam) said...

"The only FOOT-GUN I can think of that would be bigger than this one would to sue the son/daughter of a Senator. The defense to the suit may not be any better than the average case, but if that mad Senator were to go back and amend the Copyright law to allow P2P non-commercial copying, that person could win simply because the law was changed...."

Unfortunately, as McCain has demonstrated, in such a situation the senator would probably just modify the law to not apply to himself, and leave it for everybody else.

Anonymous said...

I am assuming and would not be surprised that once the RIAA has learned the identity of the defendant during the John Doe processes that they run some level of background screening/check on them, then cheery pick who they wish to sue. I make this assumption because with all these many, many, many John Doe suits, we have yet to see any politician of any government level/branch show up being sued by name. I just find that unlikely, but I guess it is statically possible.

//Me//

Anonymous said...

Over and over again I see in these filings where the RIAA states that "Billions of Songs are shared each month."

Billions indicate at least 2 billion minimum.

At 200 bucks a pop minimum (if the infringer had NO Idea he was infringing). If the RIAA collected on everyone of those they would make 400 billion a month minimum. 4.8 trillion a year. WOW... That sounds a lot more profitable than just selling er I mean licensing music. No wonder why they are suing.

Z

Anonymous said...

I haven't read about a Protective Order for Hard Drive Inspection in a long while. In similar cases, have other defendants obtained them or tried to do so? I assume they would want to do so.

KWERTIE

Usage May Vary said...

how does the whole "hashing md5 constitutes a search " thing play into the hard drive aspects, and/or how media sentry/etc tries to even verify that a file exists? Wouldnt' they now need a warrant before doing such a thing?

http://volokh.com/posts/1225159904.shtml

is the link to what I am referring to

Albert said...

Based on the "Cherry Picking" of cases, this itself is an abuse of process.

Once they sue a John Doe, they should be required to either Dismiss with prejudice or take that filed case to verdict. They should not be able to take a different action after suing, just because the Defendant is Famous/Senator/otherwise well able to defend.

I think it is wrong to dismiss once they get the names, and be permitted to use this information for non-judicial use by their collection agency. The info was provided ONLY so the complaint could be amended to reflect the true name, and allow the Plaintiff to serve that defendant with the case that was already filed.

Why are the Plaintiffs allowed to get away without amending and serving the original complaint on the Defendants? I was under the impression that the rules required the "John Doe" to be amended as soon as the identity was obtained. I have been following these cases for some time and have NEVER seen them do anything than dismiss after getting the names.

Maybe the Rules need to be amended to require Court permission to dismiss before a service attempt, or at minimum require at least one attempt be made to serve the complaint after determining the true identity of the Defendant.

My understanding is that the Plaintiffs in these cases have NEVER served a Defendant, even after learning their true name and address in these information farming suits. If anyone knows otherwise, I would like to know.

Albert

Albert said...

I think the RIAA has some nerve asking to inspect hard drives that were not even manufactured at the time of their alleged downloads.

They could NOT be evidence of the presence of P2P software or shared files at the time that MS did their downloading, so it is clearly not proper for them to ask for this.

These cases need to have a neutral expert appointed by the court. The Plaintiff's should have to provide the expert with an exact list of files that are to be searched for, and the neutral expert should ONLY provide those files and nothing else.

Has it been considered that Imaging the drive is itself Copyright Infringement? The EULA for most software including Windows, Office and even P2P software prohibits unauthorized copying. In my case, I have software I have written on my drive. If they were to image that drive, I would think I could sue them for copyright infringement.

Albert

Justin Olbrantz (Quantam) said...

"These cases need to have a neutral expert appointed by the court. The Plaintiff's should have to provide the expert with an exact list of files that are to be searched for, and the neutral expert should ONLY provide those files and nothing else."

Indeed. It's absolutely insane that one party in a court action, who isn't even part of a law enforcement agency, gets total and complete access to the entire contents of a hard drive, when what they're looking for is very specific. And the RIAA has demonstrated several times in the past that they do examine the ENTIRE contents of the hard drive, including personal documents.

"Has it been considered that Imaging the drive is itself Copyright Infringement? The EULA for most software including Windows, Office and even P2P software prohibits unauthorized copying. In my case, I have software I have written on my drive. If they were to image that drive, I would think I could sue them for copyright infringement."

That idea actually occurred to me a couple weeks ago. What if the person intentionally registered some of the files on his hard drive as copyrighted works, and then sued the RIAA for making unauthorized copies during the examination process? Of course the defendant would need a lot of them, as the RIAA could probably use the innocent infringement defense to lower the penalty to $200 each. Of course if the RIAA wanted to argue that the $200 applied to the total infringement of all works, that could be useful, too...

Anonymous said...

Albert said:

They could NOT be evidence of the presence of P2P software or shared files at the time that MS did their downloading, so it is clearly not proper for them to ask for this.

Albert, you do not understand that the infringement was Continuous and Ongoing. The RIAA has said so. That means that it migrated all by itself to all new computers owned now, or ever to be owned in the future, by the Defendant.

{The Common Man Smiling}

ScrewMaster said...

Regarding going after the RIAA for copyright infringement after imaging a defendant's hard disk ... well. If that proves to be a valid approach, I'd certainly use it if they went after me. I've been a software developer for almost thirty years now, and there's thousands upon thousands of copyright files on my network. If we're shooting for the statutory $750 per file, I think I could probably bankrupt them. No "innocent infringement defense" for them either: they'd have knowingly copied my drive(s).

Albert said...

Well, if it was "Continuous and Ongoing", don't they have to prove that as well.

Why is it that most all their complaints only have one date and time? That is because their observation is NOT Continuous and Ongoing. I would expect date/time stamps spanning MONTHS if this were in fact true. In some of the College cases they have been shown to sue more than one IP belonging to the same device. This tells me they are not in fact comparing the file lists found in order to catch these "Continuous and Ongoing" people. If they in fact had been looking, they should have noticed this.

Albert

Anonymous said...

Ray,
This case has made the front page of the Yahoo News / Technology Section!

http://tech.yahoo.com/news/ap/20081116/ap_on_hi_te/tec_music_downloading

-K-

Ray Beckerman said...

Yes, that's because the Boston Globe article was picked up by the Associated Press.