Recording Industry vs The People: RIAA files notice basically telling Judge Gertner to 'stick it', in SONY BMG Music v. Tenenbaum

Thursday, March 12, 2009

RIAA files notice basically telling Judge Gertner to 'stick it', in SONY BMG Music v. Tenenbaum

After letting the March 11th deadline for submission of its reconsideration motion, in SONY BMG Music Entertainment v. Tenenbaum, expire, the RIAA has filed a document it calls a "notice" stating that

In response to the District Court’s March 4, 2009, Order, Plaintiffs note that the District Court’s January 14, 2009, Order has been stayed by the First Circuit Court of Appeals and that any issues surrounding that Order are currently pending in the First Circuit. The First Circuit can resolve the broadcasting issue expeditiously without additional briefing or further appeals.

Notice by RIAA

[Ed. note. This vividly demonstrates that the RIAA has the kind of legal representation it deserves.

I have never seen anything like this.

The presiding judge suggested that they file a reconsideration motion, the primary purposes of which were (a) to enable the RIAA lawyers to brief something they had neglected to brief in their initial papers, and (b) to enable the Court to resolve the issue, after having been properly briefed, prior to its having to be resolved by the appeals court..... and the RIAA has simply thumbed its nose at the judge.

What makes this even more astonishing is that the reason the judge has been placed in this awkward position is the RIAA lawyers' incompetence in failing to have brought the 1996 Judicial Council resolution to her attention in the first place.

If there were any doubters among you as to the overwhelming incompetence of the RIAA's lawyers, this should remove whatever doubt is left.

And you nonlawyers out there, don't ask me what this indicates or why the RIAA lawyers did it; or where in the Federal Rules of Civil Procedure it provides for such a "notice". Because I am sure the seasoned litigators out there are as shocked and perplexed as you are.

All I can say is: I guess they feel that the tactic of humiliating the judge who presides over all of their Massachusetts cases, and who has granted them hundreds of judgments and dozens of ex parte orders on meager evidence and insufficient pleadings, against defenseless people, in connection with a situation brought about by their own negligence, is as prudent a course of action as suing one's customers. -R.B.]

Commentary & discussion:

Slyck
Copyrights and Campaigns
MegaPlatinum
p2pnet.net
Ryan's Rock Show

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

5 comments:

Nohwhere Man said...: From an old Groklaw article-
Spitting in the judge's face is not generally considered a persuasive technique
in oral argument.
(Originally posted by allparadox); March 12, 2009 at 8:44:00 PM EDT
Anonymous said...: Kinda makes you wonder how they could have passed the bar with their purchased back alley diplomas.

Anyway, It would be nice if the First Circuit Court of Appeals comes down on the side of Judge Gertner and she opens all the court proceedings in this and any other RIAA case in her court to be broadcast.

Then when they try to get them dismissed, she says "nope, not going to happen, live with it." :)

TomasG; March 12, 2009 at 9:41:00 PM EDT
eZee.se said...: Dont really understand exactly whats going on with all the legalese, but am just happy that it sounds bad for the RIAA.

Hopefully it will come back to bite their head off.

For those of you reading this who are not lawyers like me, i did find another informative post by Ray explaining this a bit further , it should help:

===========
(Comment)So, if my non-attorney self is reading this correctly, the judge says, "you missed something, you should file for an extension." and the RIAA says, "naw dog, we got this yo, it's not even your jurisdiction." is that right?

(Ray responds)
Sort of, but it's more like: the judge says: "you missed something, so I'm giving you a chance to correct it now" and the RIAA says "screw you, we'd rather let the Appeals Court decide than give you a chance to correct our error".
==============

Champaign at my place when the judge gets her own back and tells the RIAA to screw themselves ;)

Cheers!
Ryan
www.eZee.se; March 13, 2009 at 2:21:00 PM EDT
Anonymous said...: Possibly they think the appellate court will be more favorable to them than Gertner will? What are the chances it'll simply get remanded back to the district court, if it comes to the attention of the appellate court that the RIAA ignored an opportunity provided by the judge to have the issue reconsidered in the district court?; March 14, 2009 at 10:24:00 AM EDT
raybeckerman said...: There's a basic underlying principle in American law, applicable to appeals to the courts from administrative action, and applicable to appeals to higher courts from lower courts: you are supposed to exhaust your remedies in the tribunal below before taking your grievance to an appellate tribunal.

The RIAA lawyers, by failing to bring the Judicial Council resolution to Judge Gertner's attention in the first place, failing to argue its legal effect, and then deliberately refusing to do so after afforded a "second bite at the apple" by the judge, have screwed up royally.

Additionally, if you go back to the petition itself -- where their central arguments were arguments they'd never made in the court below -- I would not be surprised to see their petition bounced just on the grounds that almost all of their arguments were raised for the first time in the appeals court. And in fact one of their arguments -- the Judicial Council resolution -- wasn't raised by them at all.

Now in fairness to the RIAA lawyers and to Prof. Nesson, it appears that the reason the Judicial Council resolution was overlooked by everybody is that it wasn't properly enacted in the first place, in that proper notice wasn't given.; March 14, 2009 at 11:39:00 AM EDT

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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