Recording Industry vs The People: January 2008

Thursday, January 31, 2008

Louisiana Judge says no to RIAA's request for default judgment without a hearing

In a Lafayette, Louisiana, case, Warner v. Lewis, the defendant defaulted.

The Judge, however, has refused to rubber stamp the RIAA's request for a default judgment, and has instead ordered the RIAA to prove it is entitled to a judgment, at an evidentiary hearing scheduled for February 14th.

District Judge Tucker L. Melancon denied the RIAA's ex parte, unopposed, motion to cancel the hearing.

[Ed. Note. It is the norm, in tort -- as opposed to contract -- cases, to require such an evidentiary hearing before awarding a judgment. Copyright infringement is a tort. The RIAA, however, has somehow been able to convince most judges to dispense with such a hearing, and to just rubber stamp the RIAA's request for a default judgment based on written papers, thus saving the RIAA thousands of dollars in each default judgment case. Judge Melancon, in declining to follow the RIAA's procedure, is following correct procedure.]

December 14, 2007, Order Setting February 14, 2008, default judgment hearing*
RIAA's January 25, 2008, Ex Parte Motion to Vacate Hearing*
January 28, 2008, Order Denying RIAA Motion*

* Document published online at Internet Law & Regulation

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

MediaSentry document response received in UMG v. Lindor

In UMG v. Lindor, MediaSentry has served its initial response to Ms. Lindor's subpoena duces tecum.

The initial response consists exclusively of MediaSentry affidavits which have previously been publicly flled by the RIAA's attorneys.

MediaSentry's attorney has indicated that he is not seeking confidentiality as to any part of the initial response. Accordingly, we are able to make them available here, at this time, to practitioners.

MediaSentry Subpoena Response Part I*
MediaSentry Subpoena Response Part II*

* Document published online at Internet Law & Regulation

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To contribute to Marie Lindor's legal defense, see below.
The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.

Tuesday, January 29, 2008

RIAA withdraws Lava v. Amurao, argues it should not be assessed attorneys fees; defendant moves to exclude MediaSentry evidence for illegality

A number of motions were filed on January 28th, by both parties, in Lava v. Amurao, pending in White Plains, New York, before Judge Brieant.

First and foremost, the RIAA has moved to voluntarily dismiss its case, with prejudice. In an unusual tactic, it affirmatively argues that it did nothing wrong in pursuing Mr. Amurao, and should not be charged with Mr. Amurao's attorneys fees.

Other motions filed:

By defendant:
--to exclude MediaSentry testimony on ground of illegality;
--to take deposition of Matthew Oppenheim; and
--to compel discovery into the record companies expenses per download.

By plaintiffs:
--for discovery sanctions against Mr. Amurao; and
--for summary judgment dismissing copyright misuse counterclaim.

Plaintiffs' Memorandum of Law in support of voluntary dismissal*
Exibits to plaintiffs' Memorandum of Law in support of voluntary dismissal*
Plaintiffs' Memorandum of Law in support of motion for summary judgment dismissing counterclaim*
Plaintiffs' Memorandum of Law in support of discovery sanctions*
Defendant's motion for exclusion of MediaSentry evidence on ground of illegality, compel deposition of Matthew Oppenheim, compel expense discovery*
Defendant's memorandum of law in support of exclusion of MediaSentry evidence on ground of illegality*

* Document published online at Internet Law & Regulation

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Monday, January 28, 2008

Magistrate Judge in U. Maine case votes to sustain complaint but suggests Rule 11 sanctions for RIAA lawyers' "gamesmanship" on joinder issue

In Arista v. Does 1-27, the Portland, Maine, case targeting students at the University of Maine, the Magistrate Judge to whom defendants' dismissal motion was referred has recommended that the complaint be sustained, rather than dismissed.

In footnote 5, however, she recommended that the Court consider imposing Rule 11 sanctions based upon the RIAA's lawyers' "gamesmanship" in pretending to have grounds for joinder, when in fact there are none:

I share the Doe Defendants’ concern over the absence of individualized allegations, but for a different reason. My concern has to do with the rules of joinder, see Rule 20(a), and whether it is appropriate for the Plaintiffs to join claims against disparate defendants concerning disparate (albeit similar) conduct, even if only for the purpose of gaining the authority to serve subpoenas to obtain the defendants’ names and contact information. I assume they have done so in order to limit their filing fees and make their discovery work more manageable, but I am not convinced that it is proper. See, e.g., DirecTV, Inc. v. Adrian, 2004 U.S. Dist. LEXIS 8922, 2004 WL 1146122 (N.D. Ill. May 17, 2004) (involving claims that defendants separately pirated satellite TV services, without any allegation of concerted action, concluding that joinder was improper, and severing all but the first named defendant from the action). In particular, paragraph 20 of the complaint alleges that the claims against all defendants arise from the “same series of transactions or occurrences” because the Doe Defendants have the same ISP (the University of Maine) and all engaged in file-sharing over the Internet using that ISP. The complaint wants, however, any allegation of concerted conduct. The allegation that all of the claims arise from the same series of transactions or occurrences because all of the defendants used the same ISP sounds good, but makes little sense when one appreciates that having a common ISP says nothing about whether the use of that service by two or more people amounts to the same transaction or occurrence. 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. Separately, the Court may sever defendants sua sponte, pursuant to Rule 21, although dismissal of the action is not authorized. I appreciate that increased costs may redound to the defendants’ detriment eventually, but it is difficult to ignore the kind of gamesmanship that is going on here with respect to joinder.

Suppose, instead of university students, the record companies chose to target all individuals within the District of Maine who had used these P2P services and had TimeWarner Cable for their ISP. Would all those individuals be properly joined in a single complaint? I think the Plaintiffs know the answer to that question because on May 5, 2007, many of these same plaintiffs filed a very similar lawsuit, Atlantic Recording Corp., et al. v. Does 1-22, 1:07-cv-057-JAW. A procedure similar to the one used in this case was adopted in that case, but no motions to dismiss or motions to quash were filed and presumably the plaintiffs obtained the discovery they sought. The case was voluntarily dismissed on July 16, 2007. Following that dismissal the same counsel filed at least three separate cases in this court: Atlantic Recording Corporation, et al. v. Anna Lenentine, 1:07-cv-133-JAW, on September 4, 2007 (still pending); Capitol Records Inc. v. Cara Laude, 2:07-cv-154-GZS, on September 4, 2007 (settled and dismissed on January 22, 2008); and Atlantic Recording Corp. v. Christopher Leavitt, 2:07-cv-156-DBH, on September 4, 2007 (voluntarily dismissed with prejudice on October 16, 2007). The relevant allegations in the respective complaints simply state that the defendants were "identified as the individual[s] responsible for that IP address at that date and hour" without reference to how the identification was made. However, there is certainly a "plausible inference" that the identifications were made as a result of the May lawsuit. It is curious that no attempt was made to join these cases as arising from the same transaction or occurrence if my plausible inference is accurate. I think no such attempt was made because it is apparent that the cases would not be properly joined. 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. (emphasis supplied)

January 25, 2008, Recommendation of Magistrate Judge sustaining complaint and recommending order to show cause for Rule 11 violation*

* Document published online at Internet Law & Regulation

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Wednesday, January 23, 2008

Expert Witness Defense Fund at $6260.02

The Expert Witness Defense Fund reports the following:

54 credit card donations $3213.02
92 paypal donations $2822.00
3 check donations $225
Total $6260.02

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MIT "John Doe" planning to fight

Came across this report in "The Tech", MIT's online student newspaper:

RIAA Sends Institute 19 Settlement Letters Alleging Infringement
By Natasha Plotkin
STAFF REPORTER
January 23, 2008

Nineteen members of the MIT community have been asked by the recording industry to preemptively settle lawsuits for allegedly downloading music illegally on peer-to-peer networks, according to a Jan. 10 Recording Industry Association of America press release.

One MIT student who has received a letter from the RIAA said last week that he planned not to settle and that he would fight the RIAA’s attempts to learn his identity. To date, no MIT students are known to have gone to court — all have paid the pre-litigation settlement or have settled after the RIAA has sent a subpoena to MIT.

...................
An MIT student who said he received a demand letter contacted The Tech last week and said he plans to decline an early settlement and to fight the RIAA’s subpoena. He requested anonymity because he wants to keep his identity from the RIAA.

The student, who said he was “the victim of a fishing expedition by the RIAA,” said he did not want to settle because settlement would not prevent further legal action by the individual record labels the RIAA represents.

“I’m disappointed that MIT isn’t going to step up,” the student said. Other schools like Boston University and the University of Oregon have resisted RIAA subpoenas of student records more actively than MIT has, he said. Two BU computer science professors, Azer Bestavros and Jesse R. Stengel, gave sworn statements in July 2007 asking the Massachusetts federal district court to quash subpoenas that sought to identify BU community members. The University of Oregon in November 2007 asked the Oregon federal district court to quash a similar subpoena.

The MIT student who received a letter said he would like to challenge the subpoenas by collaborating with other MIT students who have received letters, but he has been unable to find the names of the other recipients because those records are considered confidential by MIT.

Complete article

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Tuesday, January 22, 2008

Law School Professor assigns students task of drafting motions to quash RIAA subpoena

Professor Nesson's evidence class at Harvard Law School has, as one of its assignments, the drafting of a motion to quash an RIAA subpoena:

Evidence 2008 (See "University and RIAA" under "GUILT beyond reasonable doubt")

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Catherine Njuguna opposes RIAA motion to amend complaint, says RIAA's expert has admitted they did not 'detect an individual'

In Atlantic v. Njuguna, in South Carolina, defendant Catherine Njuguna has opposed the RIAA's motion for permission to amend its complaint to remove the "making available" claim and to add a "detecting an individual" claim. (See "RIAA jettisons its "making available" complaint in Atlantic v. Njuguna, asks Court to grant leave to amend complaint" (November 29, 2007))

Ms. Njuguna's lawyer, Jason Scott Luck of Charleston's Seibels Law Firm, pointed out in his opposition papers that the allegations of the proposed amended complaint are refuted by the RIAA's own sworn statements, including the fact that the RIAA's expert witness, Dr. Doug Jacobson, has testified under oath that -- contrary to the allegations of the proposed amended complaint -- the RIAA did not 'detect an individual'.

Defendant's response to RIAA's motion for permission to amend complaint*

* Document published online at Internet Law & Regulation

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Cincinnati defendant moves to dismiss complaint in Elektra v. Licata

In Elektra v. Licata, pending in Cincinnati, Ohio, the defendant has moved to dismiss the complaint for failure to state a claim for relief.

The defendant is represented by Albert T. Brown, Jr., of Cincinnati.

Motion to dismiss complaint*

* Document published online at Internet Law & Regulation

Friday, January 18, 2008

Dawnell Leadbetter Files Appellate Brief from lower court determination that she was not "prevailing party"

Dawnell Leadbetter has filed her brief, in support of her appeal from the lower court's ruling that she was not eligible for an attorneys fee award because she was not a "prevailing party", in Interscope v. Leadbetter

Appellant's Brief*

* Document published online at Internet Law & Regulation

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