Recording Industry vs The People: RIAA opposes Jammie Thomas's request for extension so that she can hire an expert with grant received from Free Software Foundation

Thursday, February 05, 2009

RIAA opposes Jammie Thomas's request for extension so that she can hire an expert with grant received from Free Software Foundation

In Capitol Records v. Thomas, the RIAA has opposed Jammie Thomas's request for an extension of time to enable her to hire her own expert witness to rebut the RIAA's expert.

Ms. Thomas recently received a $3000 grant from the Expert Witness Defense Fund of the Free Software Foundation, to enable her to hire an expert witness.

RIAA Opposition to Motion for Extension of time to enable retention of expert by defendant

[Ed. note. This type of request would not normally be opposed. I wonder if the RIAA lawyers are afraid of something. Like their own expert being exposed for the fraud that he is. Like the judge actually getting to hear from both sides. The bullying nature of these attorneys is exemplified by this dastardly opposition. -R.B.]

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

14 comments:

anna johnson said...: Utterly, utterly shameful.

Dave; February 5, 2009 at 7:45:00 PM EST
Anonymous said...: Not found... Hurry I wanna read this... Should be good... LOL; February 5, 2009 at 8:13:00 PM EST
Alter_Fritz said...: OMG the RIAA" expert" stole your http server!

Not Found

The requested URL http:// was not found on this server.

Or something like that ;-); February 5, 2009 at 8:15:00 PM EST
Anonymous said...: Broken link to the PDF file.; February 5, 2009 at 8:50:00 PM EST
eZee.se said...: I guess text like this appearing on the interwebs have something to do with that fear:

In a 15 page expert witness declaration submitted to the court, Jayson essentially attacks the entire premise of the RIAA's lawsuit which is that an IP address can be used to uniquely identify an individual. He calls this assertion "factually erroneous" and "misleading,"
http://www.zeropaid.com/news/8955/Computer+Security+Expert+Testifies+that+RIAA+Can%27t+Identify+Users+by+IP+Address

Its really hard to imagine how low some people can go to get themselves an "expert" but deny the (if you would pardon the expression, but I think its worthy in this David vs Goliath case) underdog from having a chance of defending herself.

Good luck Jammie, they may have the expensive suits but you have the truth and our prayers with you.

Ryan S
www.eZee.se; February 5, 2009 at 8:54:00 PM EST
Another Kevin said...: The link to the brief is broken.; February 5, 2009 at 9:48:00 PM EST
Anonymous said...: It looks like the link to the pdf is down.; February 5, 2009 at 9:56:00 PM EST
raybeckerman said...: ok fixed the link

next time let me know in plain english... i'm a bit slow...; February 5, 2009 at 10:22:00 PM EST
raybeckerman said...: Thanks, folks. Sorry about that.

Link is fixed now.; February 5, 2009 at 10:32:00 PM EST
Anonymous said...: From the Plaintiff's response...

"Plaintiffs would have less than four weeks to
review the new expert’s report, depose the new expert, find a rebuttal expert, prepare a
rebuttal report, draft any necessary Daubert challenges..."

HRO is stupid enough to bring up Daubert regarding expert witnesses? I think Mr. Reynolds forgot to check Mr. Gabriels files.; February 5, 2009 at 11:04:00 PM EST
raybeckerman said...: What's really stupid is the invocation of how much time would be needed...

Duh... the motion is for an extension of time. They can have as much time as they want. Jammie Thomas isn't going to complain about giving them time to prepare their "Daubert" challenges.

Daubert?

LOL; February 5, 2009 at 11:21:00 PM EST
Anonymous said...: I guess they go by the "oppose everything" rule, no matter how trivial and no matter how much it would work in their favor. Too bad it tends to make the judge regard them as being frivolous.; February 6, 2009 at 7:21:00 AM EST
Alter_Fritz said...: Technical question!

This expert(*) seems to be just extremely nervous and wants to be sure he makes no errors.
That's why he refused to do junior grade math in his head in his deposition.
Something like that is not failing Daubert is it?

But if you have a guy that is extremely confident, that even claims that songs can't be ripped from CD in a certain timeframe and stands by this assertion with the fullest of his chest even when the opposite is demonstated right in front of him.
A guy that has no expert(ise) knowledge about a procedure at all, but that acts just like an "interpreter" for -by human(?) hand - manipulated print outs...

Such a guy(**) definetly fails the Daubert (and maybe even the Dilbert-) Test, doesn't he?!

(*) http://www.youtube.com/watch?v=sYqXlRQrBN4

(**) http://lifeboat.com/board/douglas.w.jacobson.jpg; February 6, 2009 at 7:22:00 AM EST
Anonymous said...: As long as you don't annoy the judge or prejudice the case, it's not weird to be thorough. I think that's all that's all they think they're doing here -- it's not like they are going to shoot themselves in the foot on purpose. I expect that if both parties had infinitely deep pocket for legal budgets, you'd see the same sorts of things on both sides.

To be clear: I don't mean to imply that their law firm is just filing stuff because they are being paid by the hour -- just that they are doing everything they can think of that won't get them sanctioned or otherwise prejudice their case. Overreaching (and subsequent embarrassment) can be bad lawyering without being sketchy.

-R.; February 6, 2009 at 2:45:00 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