Recording Industry vs The People: Defendant files answer in Interscope Records v. Paul, Massachusetts case in which service was made on January 20, 2009

Tuesday, February 10, 2009

Defendant files answer in Interscope Records v. Paul, Massachusetts case in which service was made on January 20, 2009

You may recall that we recently reported on a Massachusetts case, Interscope Records v. Paul, in which service was made on January 20, 2009, more than a month after the RIAA's announcement that it had ceased bringing new lawsuits.

The defendant, appearing pro se, filed an answer yesterday.

Answer

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:

Anonymous said...: That's pretty impressive for a pro se answer. I bet the RIAA is even more upset about case documents being posted online.

It will be interesting to see if the RIAA follows the recent trend of dropping a case where the defendant cannot be bullied.; February 10, 2009 at 4:26:00 PM EST
Alter_Fritz said...: lets hope the judge is impressed positively(!) too.

I remember reading one piece from a judge where (s)he was not impressed that a defendant simply copied and pasted her answer cookie cutter like just as the plaintiffs have done in those ~30000 cases so far.
it seems Amanda = Ms. Paul or the clerk she filed the answer with just copied from someone elses pdf and forgot to change the male form of defendant "he" into "she".

Beside that little point; Yes, a powerful answer with the invoking of counterclaims, every pro se defendant should file at least something like that, which is in any case better then doing nothing and playing deaf waiting for a default.; February 10, 2009 at 5:50:00 PM EST
Jadeic said...: Ray

Occasional readers of this blog must wonder why four posts ago 'No new cases since December 16th' we both concurred that there indeed appeared to be no new cases served and yet here we are commenting on one such case served on January 20th.

The problem lies in the utter mess that PACER has become in respect of the RIAA backed lawsuits. I have already commented in the December 16th post on the difficulties of tracking cases that are filed under so many record label names where even tracking the major ones is by no means infallible and is always expensive even at the comparatively low PACER charge level. The anomaly in this case is because the service of the new case Interscope Records v Paul is buried within 03-cv-11661. Readers may recall that this is the huge consolidation of dozens of cases mentioned in the blog post 'RIAA withdraws motion to enforce judgment, needs to sort out 'factual inacurracies' in its motion papers' of which said motion is currently the latest docket at #752!

In my view the consolidation of so many unrelated cases is counterproductive to the smooth / reliable running of the court filing procedures but alas is a direct result of the RIAA's erroneous joinder of these cases at the Doe stage. Unfortunately I have yet to discover a means of using the PACER search parameters to search within these huge consolidated files or, for that matter, even identify them.

To clarify, a search of All Courts for the period December 1st 2008 to (or thru for US readers) January 10th 2009 for the plaintiff Interscope produces a list of 24 cases. Of these, seven Doe cases are already closed. Of the remaining 15 are against named defendants and two are Doe cases. I'm sorry that time and finances do not allow me yet to investigate these cases to determine whether any are new cases. However, two of these cases date from January 2009 and I thought these were perhaps worth closer scrutiny. The first (07-cv-00414 Virgin Records America Inc. et al v, Nichole Young [Interscope are part of the et al in case you are wondering]) is an interesting reopening of a 2007 filing in which a default judgement was entered in May 2008. The defendant has since moved to vacate the judgement claiming she was not properly served. The case was reopened, the plaintiff did not file an opposition and the court granted the defendant's motion to vacate. Interesting. The second case is similarly intriguing and as yet unresolved. Case 08-cv-02675 UMG Recording, Inc. et al v. Ceesay (so not a new case) is notable because of the early involvement of The Oppenheim. This is another case in which the plaintiff secured a default what appears to be a routine default judgement in December 2008 but in which the defendant has subsequently filed a motion to vacate. Now it gets interesting...

Oppenheim is still at the helm so to speak and his response (docket #14) to the defendants motion to vacate - again on grounds of improper service - may reveal something of the RIAA's current strategy in such cases. After several paragraphs of history of the case in which it seems clear that there is some doubt, albeit inconclusive from the material presented, about the way in which notice was served he states '11 Because Defendant has now filed an Answer in this case, Plaintiffs do not oppose Defendant's Motion to Vacate Order of Default, Similarly, based on Defendant's filing of an Answer, Plaintiffs will not oppose any request to vacate default judgement entered against Defendant on December 17, 2008.' Despite this, he then continues in paragraph 12 to maintain that 'service was, and is, proper on the Defendant'. He also adds that in a telephone conversation with the Defendant on the matter of a motion to vacate the judgement, 'Plaintiffs reminded the Defendant that he needed to file an Answer with the Court'. The judge has ordered the case reopened.

It seems to me, but IA(decidedly)NAL, that the RIAA were looking for a way to back out of a secured default judgement. Does that strike you as odd? it strikes me as odd. Am I missing something? Could it be that something serious has gone amiss with the litigation machine post default judgement and that there is a hidden failing to serve notice of the judgements correctly. If so, then they are certainly not collecting on their ill-gotten gains and perhaps stand to have many more judgements vacated: indeed perhaps they already have.

However, to return to my original point, how will we ever know because this information is buried in PACER and almost irretrievable.

Dave; February 10, 2009 at 8:55:00 PM EST
raybeckerman said...: Dave, suffice it to say, your methodology of searching for the cases in PACER is flawed.; February 10, 2009 at 9:00:00 PM EST
Jadeic said...: An interesting but less than helpful observation.; February 10, 2009 at 9:16:00 PM EST
raybeckerman said...: Well there were more cases in December than 24. I don't know why you would search for Interscope. As you know from the index of litigation documents there are 20 or more frequent plaintiffs.

I don't want to be too explicit about how to do the search because I don't want Mr. Oppenheim and his flunkies to know anything about my methodology.; February 10, 2009 at 10:06:00 PM EST
Eric said...: I will bet this defendant will get *both barrels* from now on because he had the nerve to defend himself.; February 10, 2009 at 11:41:00 PM EST
Anonymous said...: Nice! Impressive answer from a pro se defendant!

Keep it up and stick it to 'em!; February 12, 2009 at 1:13:00 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