Recording Industry vs The People: District Judge grants severance as to all John Does other than John Doe #1 in case targeting Case Western Reserve students, Arista v. Does 1-11

Friday, November 28, 2008

District Judge grants severance as to all John Does other than John Doe #1 in case targeting Case Western Reserve students, Arista v. Does 1-11

In a Cleveland, Ohio, case targeting students at Case Western Reserve University, Arista Records v. Does 1-11, the District Court has granted the defendant John Doe #9's motion for severance, and severed as to Doe #9 and all other defendants except John Doe #1.

District Judge Kathleen O'Malley rejected the RIAA's argument that severance was premature, agreed with the authorities that had granted severance, and dismissed the authorities cited by the RIAA as providing insufficient analysis, explanation, or rationale.

November 3, 2008, Decision

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

7 comments:

Anonymous said...: Bad day to be Doe #1.

For plaintiffs to argue that the decision on misjoinder should have been postponed until the results of expedited discovery were received is so disingenuous a motive that this man wishes he could use much stronger, and more appropriate to these plaintiffs, language than is likely to be accepted for comments in this blog.

Again a magistrate judge offends this man by attempting to rule that the squeaky wheel (Doe #9) be kept in this case and all other Does dismissed for misjoinder. What is with these magistrate judges anyway? And how would identification of all Does actually determine if their actions were concerted? Clearly this magistrate judge doesn't understand (or maybe he does) that he was about to hand over to the plaintiffs everything they wanted despite the obvious misjoinder. Doe #9 was clearly correct to complain about this terrible misunderstanding of the law and attempt to punish him alone for daring to defend himself against this illegal assault on his privacy.

Fortunately the judge seems to have gotten it right here.

The Court, however, disagrees with Plaintiffs and concludes that joinder can and should be decided before the Doe Defendants are identified.

What a lovely, axiomatic, statement!

The Federal Rules of Civil Procedure should not be cast aside merely in the name of potential efficiency.

Another true gem!

In all likelihood, if the joinder decision were to be postponed, the Court would never have an opportunity to rule on the propriety of Plaintiffs’ joinder of the Doe Defendants.

A judge who truly get it! Too bad she then bends-over backwards at the end to make it easy for the RIAA to pursue the individual cases by doing all their paperwork for them. If all the remaining Does object at this point, however, it will be 11 times the previous amount of work for these plaintiffs to deal with all their separate filings. This man also wonders if new cases will get randomly assigned new judges, or if the plaintiffs will now attempt to specify all these cases as related? This man will certainly stay tuned.

Now why doesn't this logic apply to the next blog entry (Fonovisa v. Does 1-9)? Isn't justice supposed to be equal for all, and aren't all these cases Xerox copies of each other?

{The Common Man Speaking}; November 28, 2008 at 8:02:00 PM EST
Lior said...: It is odd that the Court is not requiring the plaintiffs to show cause why they should not be disciplined, after quoting another case where they were required to show cause. Surely they were on notice at the time of filing that their process was illegal?; November 28, 2008 at 10:21:00 PM EST
Anonymous said...: Will the RIAA pay the $350/person that they need with the growing number of judges who throw out improper joinder? It'll be interesting to see.

XYZZY; November 28, 2008 at 10:59:00 PM EST
Anonymous said...: Lior, The Common Man Speaking: I believe these cases are in different circuits. Binding precedent is obtained only via the appeals court in one's own circuit (or the Supreme Court), and non-binding precedent has far less impact when it's from another circuit.

The Common Man Speaking: The new cases, if pursued, will be assigned to that judge, as it says in the order.

-yt; November 29, 2008 at 12:20:00 AM EST
Matt Fitzpatrick said...: I'd bet money that there has never, even once, been a file sharing Doe case (RIAA or otherwise) in which the plaintiffs agreed to severance of non-related defendants after the Doe identities are disclosed.

Dismissal without prejudice. Every Doe. Every time.

Any file sharing plaintiff who suggests something different could happen this time needs an ethics refresher.; November 29, 2008 at 2:06:00 AM EST
Alter_Fritz said...: Preface:
Well, long time no "see", but I had some beef with my old ISP and other stuff that prevented me from commenting the last quarter or so.
Sorry Ray! (I do remember you "told" me some time ago not to cease commenting without proper notice or to go AWOL.) ;-)
While I am reading regularily again for a few days already, I thought this order here by Jugde Kathleen O'Malley would be the best one to resurface again! (I thought about "saying" something to the "trouble" you got in while me was not here, but since the HRO stuff asking for sanctioning you as counsel in Lindor is so laughable at least [Lets see if the "Big Apple Judges" agrees that it is HRO and Co. Lawyers that are the ones that should be "Rule11'ed"], I decided to do my first new comment on this one.

So here it comes:

The common man already quoted some interesting sentences from the Judge. So what I think is notable too is that she(!) obivously takes her job serious. It is nice to see the footnotes where she mentions the locations of the decisions that Ray had collected! What I do read into her order is that she is "not amused" with the gaming by plaintiffs and their counsel to burry courts in a list of cases just so that plaintiffs get what they want even if that is unreasonable or even clearly against your Rules!
Refreshing for me to see that you americans still have judges that take their job serious and refreshing even more to see that it is Ray's work in collecting those cases and make them easily available for the ordanary people and even judges that are interested in serving justice while they have a clear understanding and picture of what is going on and is done by those plaintiffs!

Thank you your Honor! I guess it was pleasing for Mr. Beckerman to see that you demonstrated with the footnotes in your order that his work is valuable for the judicial community and your honors collegues.

--
A_F; November 30, 2008 at 1:39:00 AM EST
raybeckerman said...: Welcome back, Alter_Fritz. It just wasn't the same without you!!!!; November 30, 2008 at 9:56:00 AM EST

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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