Recording Industry vs The People: Capitol Records v. Thomas trial adjourned to May 11th, parties ordered to attend settlement conference March 30th & 31st

Monday, February 09, 2009

Capitol Records v. Thomas trial adjourned to May 11th, parties ordered to attend settlement conference March 30th & 31st

In Capitol Records v. Thomas, the Court has adjourned the trial date from March 9, 2009, to May 11, 2009.

Additionally, the Court has ordered the parties to attend a settlement conference on March 30, 2009, and on March 31, 2009.

The adjournment was in response to an unopposed motion for continuance by defendant's counsel.

No reference is contained in the order to defendant's request for extension of the discovery deadline to enable defendant to retain an expert witness.

Motion for Continuance
February 9, 2009, Order, Adjourning Trial to May 11, 2009, and Scheduling Settlement Conference for March 30-31, 2009.

[Ed. note. A few observations: (1) Isn't it unusual to schedule a settlement conference for 2 days? I don't think I've ever seen that. (2) Isn't it surprising that the settlement conference is before District Judge Davis, rather than the Magistrate Judge? (3) Doesn't this adjournment obviate the RIAA's excuse for opposing giving Ms. Thomas a chance to retain her own expert witness with the $3000 grant she received from the Free Software Foundation's Expert Witness Defense Fund? -R.B.]

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:

Unknown said...: In looking at the settlement conference, it does not appear that counsel for either D or P requested the conference. Is it standard practice to schedule one after such text in the motion for continuance as "Finally, the parties have had a very limited dialogue respecting settlement.
Having additional time before trial would facilitate the same." or were there conversations outside of the judicial record about scheduling these dates? (realizing I'm asking for some speculation). I could understand at this point that the Plantiffs may wish to avoid retrying this case.; February 9, 2009 at 11:34:00 AM EST
raybeckerman said...: No I don't think that it's surprising for the Court to sua sponte schedule a settlement conference. I take that as an indication that the Judge has strong feelings that this case should be settled rather than consume additional taxpayer money.

And I feel this is buttressed by the fact that he scheduled the settlement conference before himself rather than the Magistrate Judge, and by the extraordinary fact that he scheduled the settlement conference to take place over two days.

I expect that Judge Davis will lean on the parties to settle.

And since he will be the judge presiding over the trial, the parties will listen carefully to every word he says to them at the settlement conference.; February 9, 2009 at 11:44:00 AM EST
Unknown said...: Not to mention, didnt' he just give Thomas her continuance to retain her own expert witness?

I mean, he just gave her an extra 30 days?; February 9, 2009 at 12:18:00 PM EST
eZee.se said...: I hope this finishes for Jammie soon, she has gone through so much... its just not fair or in proportion to what she has been through for a few 99c songs (well less than 99c for the industry I must add to new people following this case).

Would be nice if the judge tells the industry to take the 3k that she was going to use for the expert witness and ends the whole thing, very very unlikely i know... but one can hope.

Stay strong Jammie.

Ryan
www.eZee.se; February 9, 2009 at 1:46:00 PM EST
Scott said...: Is it completely out of the question that the Attorney General's office might be pressuring Judge Davis to keep this case from coming to trial?

(I'm not suggesting that this might be happening -- just asking if it's reasonable to rule this out completely.); February 9, 2009 at 2:20:00 PM EST
Alter_Fritz said...: Well she claims(ed) that she didn't do anything illegal, so lets have Evil4 pay her 1.5 millions to settle!

And get Mr. Oppenheim arrested when he shows up as the principal for those colluding record companies!; February 9, 2009 at 2:39:00 PM EST
skeeter said...: Could it be that the judge realizes that he would have to instruct the jury that "making available" is not in itself proof of distribution? I think the judge realizes that in the event of another verdict in favor of the plaintiffs, it would only go to an appeallant court and possibly be overturned. More money wasted. I would like to be a fly on the wall during this conference.; February 9, 2009 at 4:47:00 PM EST
raybeckerman said...: No the judge isn't worried about being reversed any more. He reversed himself. Now the record is clear.

I think he's worried about the RIAA's attempting to use his courtroom for more grandstanding and he's worried about wasting more taxpayer money to persecute some lady (a) who has no money and (b) who, even if you believe she did "it", didn't do anything so terrible.

That's my guess.; February 9, 2009 at 4:58:00 PM 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