SUNY Albany student files reply memo in support of motion for stay of RIAA subpoena in appeals court, in Arista Records v. Does 1-16

In Arista Records v. Does 1-16, the case targeting 16 students at the State University of New York in Albany, "Doe Number 3" has filed his reply memorandum, in further support of his or her motion for a stay pending appeal, responding to the RIAA's opposition memorandum, in the United States Court of Appeals for the Second Circuit.

The Appeals Court has stayed the lower court's order and the subpoena pending the determination of the motion before it.

No argument date has been set for the motion.

The defendant's appeal brief is due May 6th.

The memorandum argues:

The main shortcoming of appellees’ papers is that they do not address the concerns of an appellate court, which are not the same as those of the district courts which have been inundated with these file-sharing lawsuits. This case raises many matters of first impression at the appellate level in general, and in this Court in particular. The district court precedents are not controlling, and there are many well-reasoned cases whose holdings directly contradict those cited by the appellees.

The fact remains that of these numerous ex parte (and litigated) applications, there is little appellate guidance (and apparently none from this Court) as to how this unprecedented flood of copyright litigation should be handled by the district courts. In trying to interpret statutes enacted in the pre-internet age, district courts are essentially improvising in many respects. Given the technical issues and the significant imbalance in the resources between the RIAA and these individual defendants, there needs to be such guidance.

It further argues:

The tensions and conflicts between copyright law and the inevitable and socially beneficial advancement of computer technology and the internet raise difficult problems of law and public policy. But the proper place for the resolution of these conflicts is Congress, where the interested parties can present their arguments, not ex parte proceedings and default judgments in the federal district courts. Suing thousands of people who seldom have lawyers or the ability to defend themselves, and extorting settlements, is not the way to resolve it either, and it is seriously detrimental to the sound development of copyright law.

Moreover, the methods and technology used by the RIAA are highly questionable. Recently, some defendants have retained their own expert witness to challenge the RIAA’s expert, and that witness’s findings point out serious flaws in the process. [footnote] See the report of Professor Yongdae Kim of the Department of Computer Science of the University of Minnesota, submitted in the Thomas case, available at http://recordingindustryvspeople.
blogspot.com/2009_03_01_archive.html#1082514775121526971 (accessed March 29, 2009)[end of footnote] Moreover, even apart from battles of experts, when a technology is so flawed that it results in suits against homeless and dead people, or people without computers, or even a takedown notice directed to a laser printer, something is seriously wrong. The RIAA has frequently sued admittedly innocent persons and is quite cavalier about the burden they impose on the legal process and the federal judiciary, and the effects of such frivolous suits on their victims. Under such circumstances, a blanket rule automatically allowing the invasion of First Amendment rights in these RIAA cases would be seriously detrimental to the rights of Doe 3 and to the public interest. All of these issues justify the granting of a stay so that they can be thoroughly presented to this Court.

Defendant's reply memorandum in support of motion for stay pending appeal

[Ed. note. The more I see of Richard A. Altman, the author of this reply memorandum, the more I think he is one of the greatest lawyers I have ever known. He represents all that is good and humane and civilized about the practice of law, and is a true credit to the legal profession. To you law students and young lawyers out there, take a look at the briefs and other legal documents of Richard A. Altman in such cases as Lava v. Amurao, Lava v. Amurao II, Arista v. Does 1-16, Interscope v. Kimmel, and UMG v. Lindor; this is what lawyering is all about. I am proud to be able to call him a friend, and to be on the same side as he is in this bitter struggle. -R.B.]



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