Recording Industry vs The People: RIAA withdraws subpoena and discontinues case in Austin, Texas, proceedings targeting Rhode Island students, in Arista Records v. Does 1-22

Tuesday, January 13, 2009

RIAA withdraws subpoena and discontinues case in Austin, Texas, proceedings targeting Rhode Island students, in Arista Records v. Does 1-22

Rather than proceed further in Austin, Texas, the RIAA withdrew its subpoena directed to Austin-based internet service provider Apogee Telecom, and discontinued its "John Doe" case, in Arista Records v. Does 1-22, a case targeting students at Rhode Island College.

In Arista Records v. Does 1-22, the RIAA brought an ex parte discovery motion in Providence, Rhode Island. The judge granted their order. Because the college was not the ISP, however, and because the ISP was a company located in Austin, Texas, Apogee Telecom Inc., the RIAA was required to go to the Court in Austin, Texas, in order to obtain a subpoena.

Upon receipt of the subpoena, however, Apogee -- instead of complying and turning over the names of the "John Does" -- filed objections to the subpoena.

At that point, the RIAA would have been required to go to court in Austin to obtain a ruling on the objections. (The Austin court is the court which, four years ago, ordered the RIAA to cease and desist from its practice of joining multiple John Does in a single case, a practice which the RIAA continued despite the November, 2004, order, and was using in this very case.)

Instead, the RIAA withdrew the subpoena, and voluntarily dismissed its case.

January 7, 2009, Letter Withdrawing Subpoena
Notice of Dismissal Without Prejudice

Commentary & discussion:

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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

8 comments:

Alter_Fritz said...: Oops, while the error in the second link is easily spot- (and therefor also cureable)

http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/arista_does1-22_090112NoticeDismissal.pdf

it seems the copy you got is not signed yet! The Date field is yellow here and can be filled out!

Oh, and the first link claims as result that your Yahoo Server has no http anymore!
RIAA Sturmtrupps at work?; January 13, 2009 at 7:51:00 PM EST
raybeckerman said...: Thanks, Alter_Fritz. I've fixed both links!!! Much appreciated!!!; January 13, 2009 at 8:01:00 PM EST
Anonymous said...: Do we have any of the Objections around? I would love to read them, and wonder if by any chance one of the objections is that it contained many John Does after being ordered not to file such a case by the Court.....

I wonder if someone can NAIL them with the Court for so clearly violating Court Orders. I have always figured the lack of reported cases in that district had to to with avoidance by the RIAA and their member recording companies.

I also say this: RIAA, how could you do such a DUMB act.......

Albert; January 13, 2009 at 8:46:00 PM EST
Anonymous said...: Albert: The RIAA lawyers are gaming the system. And until fairly recently, quite effectively. That's not dumb, it's just terrible.

elway; January 14, 2009 at 10:09:00 AM EST
Anonymous said...: Ray,

I hope this is getting brought to the attention of the judge.

Would it be proper for us as laypeople to write a letter to bringing this matter to the Courts attention?; January 14, 2009 at 10:44:00 AM EST
Unknown said...: Anon at January 14, 2009 10:44:00 AM EST

Well, Haven't you read any of the HRO filings where they argue that their clients in their capacity as "legal people" have the constitutionally granted right to petition the government?

So what is good for them, can't be bad for real humans, can it?

If you guys don't spam the chamber of a judge with email(s), but instead write a polite snail mail letter, I would say, why should it not be appropriate to do so?

Something like
Your honorable judge NAME!
It has come to my attention that INCIDENT.
While I'm no party in INCIDENT, I thought non the less that it could be beneficial for your honor if you would take judicial notice of INCIDENT.

Respectfully
AMERICAN LAW ABATING CITIZEN; January 14, 2009 at 11:01:00 AM EST
Anonymous said...: This could make Apogee Telecom Inc. a very popular ISP. Smart universities should be looking for Austin based ISP's as a way to avoid the outrageous legal threats of the RIAA. Maybe then schools could go back to educating our kids.

JoeVet; January 14, 2009 at 5:04:00 PM EST
Anonymous said...: JoeVet: Universities can structure their networks in ways that provide for anonymity whether they use an Austin ISP or not. It's just that most of them don't see much value in it. The classic scenario of university administrators not recognizing students as customers, and thus hurting themselves. -Ty; January 15, 2009 at 4:33:00 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