Recording Industry vs The People: RIAA withdraws motion to enforce judgment, needs to sort out 'factual inacurracies' in its motion papers

Friday, February 06, 2009

RIAA withdraws motion to enforce judgment, needs to sort out 'factual inacurracies' in its motion papers

You may recall that we recently reported that the record companies assigned a default judgment they'd obtained to the RIAA, and that the RIAA had made a motion to enforce the judgment, in RIAA v. Buckley in Massachusetts.

We've just learned that the RIAA's collection lawyer has withdrawn the motion because the motion "contained factual inaccuracies to which plaintiff needs to sort out".

Motion to Withdraw Motion to Enforce Judgment

[Ed. note. Hmmm. "Factual inaccuracies"? That never bothered them before. This attorney, Simon Mann, must be new around here. He's not going to have the RIAA as a client for long if he's going to be finicky about getting his facts right. He wouldn't fit in with Matthew Oppenheim and the Holme Roberts & Owen crowd.

By the way, here's a pointer for you law students out there: you're supposed to "sort out" the facts before, not after, you sue somebody. You might not have picked that up if you've been following the RIAA cases.

-R.B.]

Commentary & discussion:

Slashdot
p2pnet.net

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...: Hey Ray,
I wouldn't complain too much if the RIAA accidentally fouled up (like that is a rarity) and hired a competent, ethical lawyer.

It's honestly a refreshing change.

MDT; February 6, 2009 at 5:56:00 PM EST
eZee.se said...: I like this "Ed note.." sounds like you are having a nice day ;)

Guess this guy may be replaced soon by Mr.BS (who kind-of-OT we just did a post on http://ezee.se/articles-blog/2009/02/06/load-mr-bs/
I think he was a bit upset we referenced this blog as well as p2pnet)

Either this collection lawyer is new, or they must have made quite a major boo boo for them not to go after every penny they can squeeze out of some more poor souls, I'm sure RvP will have the skinny on the news sooner rather than later so will be back ;)

Cheers!
ryan
www.eZee.se; February 6, 2009 at 7:23:00 PM EST
raybeckerman said...: On the contrary, by linking to his blog you're doing just what he hoped you would do.; February 6, 2009 at 7:39:00 PM EST
eZee.se said...: Fixed it..
Users can still click and go to his blog but the link is useless to search engines and his link popularity.

We created the eZee URL program just for that, if RvP needs to use it at any time just give me a shout and I'll email you the address where you can make these 'secret redirective' URLs

Cheers!
R; February 6, 2009 at 7:55:00 PM EST
Jadeic said...: I think we can now add 'factual inaccuracies' to the RIAA lexicon of gross understatement.

In short, although this has taken me some digging through the morass that is PACER when it comes to the filing of consolidated RIAA cases in Massachusetts the key elements of the assertions made by newbie Mann are plain & simply wrong.

03-CV-1161-NG is in fact a consolidation of dozens of cases and, as far as the filing is concerned, this is the root of the problem and paragraphs 4 & 5 of the Plaintiff's Post-Judgement Motion To Enforce Judgement are the key.

It is a factual inaccuracy to state in paragraph 4 that judgement was entered against the defendant ... [O]n December 1, 2004 considering that the first appearance of Monica Buckley as a defendant appears in the (pre-consolidation) case 07-CV-10340-NG Docket 1 filed 21 February 2007.

It is a factual inaccuracy to state in paragraph 4
that judgement was entered against the defendant in the amount of $4,340.22 when docket 453 of the consolidated 03-CV-1161-NG filed on 15 August 2007 shows that the default judgement was for $3,750 plus $420 costs.

As a point of information there were three default judgements filed on 1 December 2004 in 03-CV-1161-NG, none were for the defendant Monica Buckley and none for the amount $4,340.22 - it makes you wonder where they got that figure from.

It seems from all the court papers that do relate to Monica Buckley that she has not responded at all to any of the allegations - hence the default judgement - although the plaintiff alleges that she has been 'very evasive in her answers' regarding settlement which implies some contact. That said they may have been talking to someone else entirely - who knows?

Even if they do sort this out I for one would check very carefully the date that they intend to use for accrued interest...

Dave; February 7, 2009 at 5:12:00 PM EST
Alter_Fritz said...: Unglaublich! Einfach unglaublich was für eine Schlamperei bei der Truppe herrscht!
Haben noch nicht mal Ihre Urteile richtig sortiert!
Die gehören alle gefeuert!

*SCNR*
a little play in reference to my comparing RIAA with some german guys...
Thanks Dave "Jadeic" for that digging!; February 7, 2009 at 6:42:00 PM EST
eZee.se said...: Was just too curious as to what that meant... online translation cleared it up a little:

Unbelievable! Simply amazing what a sloppiness in the Force there!
Did not even your sentences properly sorted!
They are all fired!

Cant help it, was born hyper curious :)); February 7, 2009 at 7:13:00 PM EST
Alter_Fritz said...: sorry Ezee, my fault. the "Ihre Urteile" should have not been capitalized. Because of that onlinetranslation gave you "Your" instead of "Their" judgements/sentences.

Mea Culpa; February 7, 2009 at 8:09:00 PM EST

Post a Comment

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