Monday, January 26, 2009

Plaintiffs' motion for discovery sanctions partially granted in Arista Records v. Usenet.com

In the RIAA's case against Usenet.com, Inc., Arista Records v. Usenet.com, Inc., the Magistrate Judge -- in a 73 page opinion -- has partially granted plaintiffs' motion for discovery sanctions for spoliation of electronic evidence. The Court declined to consider portions of the defendants' expert witness's declaration due to the expert's failure to meet Daubert reliability standards as to those portions.

January 26, 2009, Memorandum Opinion and Order, Granting in Part, Denying in Part, Plaintiffs' Motion for Discovery Sanctions

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:

Interested said...

So, in the New York federal district court, is it fair to say that the expert rules in Daubert apply to defendants, but not to the RIAA?

Anonymous said...

So it would appear.

Ray Beckerman said...

I assume you are both referring to Judge Trager's opinion in the Eastern District of New York in UMG v. Lindor, where he denied our motion to exclude the testimony of the RIAA's expert due to his admission that neither his work, nor the work of MediaSentry upon which his work was based, met ANY of the Daubert reliability standards.

In my opinion Judge Trager's decision was incorrect, and not consistent with (a) the Federal Rules of Evidence, (b) applicable Supreme Court and Second Circuit authority, or (c) the vast majority of cases in the Eastern District and in the Southern District.

So no I don't think there are different standards for plaintiffs and defendants. I just think one District Judge in the Eastern District made an extreme error.

Sebastien said...

wait, why isn't usenet.com protected under common carrier status?

Sebastien said...

Do they realize the sheer amount of data flow that goes on in usenet? Most usenet providers dont' keep more than a day's worth of stuff at any given time, sometimes less, just because of the sheer mass of what gets passed through.
The riaa sent them effectively a DMCA take down notice. They did take the groups down, and then RIAA wants them to put them back up and collect usage data to see who downloaded them?

That's highly invasive. It would also give them TONS of false positives, as you can be subsribed to that group, and download the headers, without necessarily downloading the actual files.

Additionally, if RIAA really wanted those files, they could themselves subscribe to an upstream usenet group and save them to their drives as much as they want.
Has the RIAA not heard of Google cache, or the back in the day machine that lets you see old versions of many sites?

Wait, defendant verified 4 days ebfore that the websites were available, but didn't have the foresite to take screenshots?

This was a fishing expedition, Usenet is being sued because they failed to provide the RIAA with grandmothers to sue.

Ray Beckerman said...

2 comments deleted from the same user, 1 under this post, 1 under Jammie Thomas post.

Neither post made any sense.

Not Telling said...

Usenet sold their services knowing that it will be used to download large binary files.

It was widely advertised on their website that you could download thousands of songs and movies. They only recently modified their website to not make such express claims. In any regard, the Supreme Court has already stated that whoever distributes a device and encourages its capability to infringe copyright is liable for the underlying acts of infringement.

Usenet sells accounts based on the amount of bandwidth that you would use (in the GBs). If you are just downloading articles, you will never use more than 1 GB in a month.

It was quite obvious that they were catering to people who wanted to download vast amounts of files, including music files.

Whether or not those music files were copyrighted and whether or not the record companies held copyrights to them is unclear thanks to their destruction of the evidence.

It is clear that they destroyed evidence. Disabling access to the newsgroup has no effect on preserving the data that was contained in that newsgroup. They themselves said that the music newsgroups used only one server and did not use it to its full capacity. So they would have no trouble retaining that data.

If they are in control of 32 servers, the obviously have access to server logs. What they should have said is that they didn't maintain server logs. There would be no way to prove otherwise.

So the lesson learned (again) is not to destroy evidence under any circumstances. I have seen countless cases where the Defendant destroyed evidence, even in cases when it is not necessary because the matter of law is on the side of the Defendant. It ALWAYS ends bad, and it ALWAYS puts the Defendant in much worse circumstances than he was before. If you maintain the evidence, then you can (a) delay producing it until the other side produces theirs, (b) argue with the Court that the evidence is irrelevant to the case, privileged, or proprietary (c) have your expert witness refute validity, significance, or reliability the evidence and/or (d) demonstrate evidence that contradicts it.

But when you destroy evidence the Court will at the minimum assume that the evidence would have worked against you, and in some cases will also assume that the evidence would have proven that you are liable for damages as a matter of law.

By way of example, if you downloaded some MP3s, and preserved them as evidence, those MP3s may be used to prove that you downloaded MP3s (as a matter of fact). But that does not prove that downloading those MP3s was an act of copyright infringement.

If you destroyed the evidence, then the Court would assume that you downloaded those MP3s (as a matter of fact) and would probably assume that those MP3s demonstrated copyright infringement (as a matter of law).

In many cases, it will enter a default judgement. In at least two cases that I have seen, the Defendant destroyed relatively minor evidence but the judge chose to grant the Plaintiffs a default judgement in the maximum amount ($150,000 per work).