Recording Industry vs The People: RIAA seeks summary judgment against Rolando Amurao's daughter in Lava Records v. Amurao II

Wednesday, April 15, 2009

RIAA seeks summary judgment against Rolando Amurao's daughter in Lava Records v. Amurao II

In Lava Records v. Amurao II, the RIAA's case against Rolando Amurao's daughter, the RIAA has moved for summary judgment.

Defendant's response is due April 30th.

Plaintiffs' memorandum of law in support of motion for summary judgment

Commentary & discussion:

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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

6 comments:

Alter_Fritz said...: Now what a "curious" argument/math are those RIAA lawyers using in this motion for summary judgement ("mofosuju")?

one sentence they claim that it would not be feasable and would took so much time to download "some high numbers they like to use and throw around like rice on a wedding" of soundrecordings, so their "third party" downloaded "only" 10 files that they claim are their copyrighted recordings.
Yet in extreme hyperbole they mention repeated times that defendant distributed "millions" of copies. And yet their own unlicensed illegal investigator MediaSentry could only download 10 (ten) files?

Question: Is it actionable misconduct by RIAA lawyers to write such contrary nonsense?

And isn't it NOT a matter of equity but willful misbehaviour/misconduct that they throw around four different numbers like aprox. 1300, ~54, ~26, and 10 and then saying they want $750 each for 30 something of files?(*)
Where is the due process and following of law in this?

Have RIAA lawyers watched too much of Graf Zahl's ("Count von Count") number lessons on Sesame Street that they got literally drunken on them, or are they even descendants of this "number-thirsty" vampire?

(*) Watch out tenenbaum team for this number inflating modus operandi by plaintiffs lawyers! 7 songs and statutory maximum of ~1 million might change given that their press gang already mentioned after the oral argument that it is NOT a Prof. Nesson said about "Clicking 7 times on a computer screen" but that they talk about hundreds of songs at issue.; April 15, 2009 at 9:44:00 PM EDT
Anonymous said...: When using a P2P program such as Limewire, the user must sign a user agreement; In fact, all users of the program must sign a user agreement. I wonder what the agreement says about using the program to sue individuals with?; April 15, 2009 at 9:49:00 PM EDT
Anonymous said...: What precisely is meant by "Mr. Amurao took initially took responsibility for the infringement..."?

Plaintiffs claim defendant never paid for any songs she allegedly downloaded with Limewire. Hypothetically, if she owned a CD and downloaded a song off of Limewire that was also on her CD, would that download be illegal?

When plaintiffs were taking depositions and such in Dad's case, they got evidence to use in Daughter's case. Certainly this shows they improperly brought suit against Dad when they should have investigated better. Is there a way to get such evidence thrown out?

Jay Kay; April 16, 2009 at 7:34:00 AM EDT
Anonymous said...: "When using a P2P program such as Limewire, the user must sign a user agreement; In fact, all users of the program must sign a user agreement. I wonder what the agreement says about using the program to sue individuals with?"

I assume you're asking, "Didn't MediaSentry agree not to investigate filesharing when they clicked on the EULA for Limewire?"

Not all clients have EULAs. The EULAs probably don't do what you think they do. Even if the EULAs did, in this case the EULA is an agreement between the user (e.g., MediaSentry) and the software owner (e.g., Limewire). Defendant is not either of these parties, which makes that angle hard to tackle.; April 16, 2009 at 7:40:00 AM EDT
Anonymous said...: The April 16, 2009 7:40:00 AM EDT comment was mine, sorry I forgot to sign it.

XYZZY; April 16, 2009 at 9:31:00 AM EDT
Alter_Fritz said...: @ the 2 anons,
but your argument is assuming a specific setup (using of regular software) and totaly overlooking one crucial argument of RIAA.

They claim their "investigators" log onto those networks and do what "any other user can do", but they never claimed that they used the regular normal "over the shelf" software version a normal user uses.
In fact they claim their whole methodology is "highly secret" and "proprietary" and no one is allowed to question or check their "pirate catching blackbox thingy".

Even Sony BMG, Lava Records and the other co-conspirators lawyers offered an "Expert" named Douglas W. Jacobson and reports of him and it turned out to be a guy that himself even has absolutely NO knowledge what MediaSentry is/was doing, or what software (over the shelf regular or "investigator self written") they were using in their "investigation" and "catching of infringers"

So if even Plaintiffs own experts have no clue what plaintiffs (allegedly illegaly operating) investigators are/were doing, we commentators should not assume something that we have no clue about either and where our speculation could be used by plaintiffs sneaky lawyers in their courtpapers as "facts that are known and that they don't have to prove".
They do this stuff often enough, and benefit from technology illiterate/ignorant judges when they don't calim something but induce the not outspoken claim into the thinking of the judges by speculations like those at hand here about what software they were using.
Remember the Kim expertreport where he mentioned the flaws with the telephon/ postal service analogy that the plaintiffs lawyers and expert Dr. J. likes to use when explaining IP adresses and the "identification of individuals by their IP adresses" to judges that lack the necessary basic knowledge about a network and its usage of IP adresses to see the misstatement of facts that RIAA lawyers are claiming there.; April 16, 2009 at 9:31:00 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