Recording Industry vs The People: Univ. of New Hampshire student files motion to change venue from Colorado to New Hampshire in SONY BMG Music v. Fillo

Wednesday, April 01, 2009

Univ. of New Hampshire student files motion to change venue from Colorado to New Hampshire in SONY BMG Music v. Fillo

In SONY BMG Music Entertainment v. Fillo, a case brought in Colorado -- the home base of the RIAA's lawyers Holme Roberts & Owen -- against a University of New Hampshire student, the student, who has been representing herself, has hired an attorney, and moved for a change of venue to New Hampshire.

Prior to making the motion, defendant's attorney contacted Plaintiffs’ counsel and asked for their consent to a change of venue, and they refused.

Amended complaint
Defendant's motion for change of venue
Defendant's memorandum of law

[Ed. note. The plaintiffs' counsel's refusal to change venue to the location where the defendant lives, works, and studies, and where most of the witnesses are, is but another example of the disgraceful behavior exhibited by plaintiffs' counsel in these cases. In my personal opinion, the lawyer who turned down the request does not deserve to be a lawyer. If I were the presiding judge I would order plaintiffs to show cause why Rule 11 sanctions should not be issued against their counsel. -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

5 comments:

Matt Fitzpatrick said...: If you're of the opinion that the real purpose of these lawsuits is to extract nuisance settlements by putting defendants who fight back through the financial wringer, then it makes perfect sense to put defendants through as much motion practice as possible, right?

RIAA plaintiffs over several years and many many lawsuits, through their counsel, have done little inconsistent with that theory. Why start now?; April 1, 2009 at 2:41:00 PM EDT
raybeckerman said...: It's just a filthy, low level, way to practice law, one that breeds contempt for our profession.

They are the sorriest excuses for lawyers I have ever seen.; April 1, 2009 at 2:53:00 PM EDT
Albert said...: I am surprised that the issue of Proper Service of Process has not been raised.

In many places, including the state where I live you can serve other people that live in the house where you also live. In this case, it appears the Devendant NEVER lived in Colorado after leaving for College.

Looking around the web, I found this quote from Colorado:

"Upon a natural person over the age of eighteen years by delivering a copy or copies thereof to the person, or by leaving a copy or copies thereof at the person’s usual place of abode, with any person over the age of eighteen years who is a member of the person’s family..."

Since clearly Colorado is not her "usual place of abode" while she attends school in New Hamshire, maybe a special appearance to dismiss for lack of proper service should have been done.

If she is not living in Colorado, service upon a family member in Colorado is NOT proper.

I also wonder if the reason they object is that 2 dismissal rule we have discussed here before. At this time, Defendant has now been sued twice, once as a John Doe in New Hampshire and now for the second time in Colorado. Maybe they are afraid this second dismissal to move back to New Hampshire will prevent their 3rd filing under the 2 strikes only rule.

Also from the Plaintiffs point of view, they are going to have a hard time forcing the witness that ID'd the IP address of the Defendant to come to Colorado if they decide not to. Without such witness, their case cannot be proved.

I have never seen a case before that so clearly shows it was filed in the wrong district. I wonder if they actually decided to do this because they could not actually locate her in New Hampshire to serve process, and decided serving her parents would be much easier. I dont have Pacer access, but do wonder from those that do, if there is another New Hampshire case under her name which was closed for lack of service of process. If so, the Colorado case actually might already be case # 3, and the Defendant would be entitled to dismissal under that 2 strikes rule.

Albert; April 1, 2009 at 8:50:00 PM EDT
Alter_Fritz said...: Well Albert,

your observation regarding the *LAW* is probably right I guess...

... but it's not that those "Lawyers" from Holme, Roberts and Owen actually care about what the law is, do they?

We have seen so many lows from them, and always we wonder if THAT "particularity" (as Mr. B.S. called their behaviour in the alleged enforcement of copyrights that their clients allegedly own) is the one that hit rock bottom but it seems Holme Roberts & Owen lawyers can always hit a bit lower.

Do they have some internal competition among their "approximately 240 attorneys in offices in Denver, Boulder, Colorado Springs, London, Los Angeles, Munich, Salt Lake City and San Francisco" going on about who manage to get away with the most outrageous pervertation of your laws? It nearly seems this way already after all this years since they signed responsible for the setup of this "pay us online - no questions asked "-website.

So we shouldn't be surprised about this one here, should we?
Remember the case with the homeless guy when the lawyers for a nearly identical set of Plaintiffs cartel did this "creative declaring" of events before the judge in charge?
Counsel for defendant Doe3, Mr Altmann just mentioned that case lately in his papers to the appeals court for the second circuit if i remember correctly.
Seems he can add now another incident to his list of footnotes that show with what kind of Plaintiffs (Sony-BMG, EMI, Vivendi Universal and Warner) and their counsel (Holme, Robers & Owen, Jenner and Block and the likes) the judges have it to do.

And for Lady Justicia's sake, why is it that it seems necessary to put every single of those HRO-"lawyers" on notice that what they write and declare under Rule 11 in those "new boilerplate" accusation papers logically MUST be a "misstatement of facts" if the previous ones used -where it was the Media Sentry guys that allegedly detected the alleged infringement and identified the particular defendant as the responsible person for it all- claim to be the one that were true?
This time it was another HRO guy that claimed these impossible events. Has Timothy all his "I escape Rule 11 sanctions"-cards already used on the new boilerplate complains he has signed himself?
Boy, if that is the tactic of HRO to put each of their attorneys names under those papers to have the inadvertable (that one judge one day finally sees behind it all and actually starts hitting plaintiffs and their counsels with declarations of Rule 11 violations) delayed as long as possible, then I fear the worst for your american justice system. HRO is growing like cancer and opening new offices in your country as evidenced on their webpage where they now say they already have over 250 lawyers they can use and a city more.

Where are all the judges in contrast to that?

Those Judges who sees what pervertation is done to your society and your perception of what is right and what is wrong that comes out of this crusade of Organised Music against progress and benefit for society at large?
Organised Music in their pursuit to prevent their outdated business model from becoming as obsolete as the iceblock-salesman on the corners became with the invention of home refrigerators!

Poor american justice system!; April 2, 2009 at 4:50:00 AM EDT
Alter_Fritz said...: P.S. regarding your mentioning of the mightbe invoked 2 dismissal rule.
Of course I'm not a lawyer and I actually don't know it anyway, but I guess, this scenario here is not at issue in this event.

Transfer of venue from HRO's home forum to NH "feels" to me not as being the same as a dismissal of for example the first John/Jane Doe Case that is used in Plaintiffs scheme.

But even if it would be, I doubt that HRO "lawyers" actually had such a fear in mind when they indicated to refuse a transfer.

In my Opinion the HRO lawyers are just bad bad bad guys (no stronger words out of respect for Ray's comment policies) and they did this here this time out of general character defect, not out of this very smart thinking about your rules for dismissal that came to your mind Albert.; April 2, 2009 at 5:01:00 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