Recording Industry vs The People: Jammie Thomas may have to go to trial alone; her attorneys seek withdrawal, RIAA opposes continuance

Friday, May 15, 2009

Jammie Thomas may have to go to trial alone; her attorneys seek withdrawal, RIAA opposes continuance

In Capitol Records v. Thomas, Jammie Thomas's lawyer has made his second motion for permission to withdraw from the case.

According to Mr. Toder's motion papers, the RIAA does not object to his withdrawal, but does object to the Court's granting Ms. Thomas any continuance.

Motion for leave to withdraw
Declaration of Jammie Thomas
Memorandum of Brian Toder

[Ed. note. Coming from any other attorneys in the world, it would be beyond belief that the plaintiffs' attorneys would object to a continuance. Only RIAA lawyers would do that. I predict that the judge will grant Ms. Thomas a reasonable continuance notwithstanding the RIAA's objection. To you law students and young lawyers out there, the RIAA's refusal to permit a reasonable continuance in a situation like this is not acceptable behavior by an attorney at law. Were I the judge I would impose Rule 11 sanctions. -R.B.]

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

12 comments:

Rule11 said...: Rule 11 only speaks to the signing and certification of papers. Where do you find the authority within the rule to impose sanctions for the denial of what is, at best, an unspoken professional courtesy?; May 15, 2009 at 7:14:00 PM EDT
raybeckerman said...: 1. Obviously there is no basis YET; the RIAA haven't submitted any papers yet. But when and if they were to submit papers opposing a reasonable continuance, as Mr. Toder says they intend to do, I would order them to show cause why they should not be sanctioned.

2. Since your name is "Rule11" you must know that a lawyer's signing papers constitutes a representation to the Court that the papers are "not being presented for any improper purpose, such as to harass... or needlessly increase the cost of litigation".; May 15, 2009 at 7:23:00 PM EDT
raybeckerman said...: I wonder why Rule11 has blocked access to his, her, or its profile.; May 15, 2009 at 7:25:00 PM EDT
Anonymous said...: "...your movant avows that he has had meaningful dialogue with other
counsel who have indicated a strong desire and possibility, if not probability, that they will represent defendant if they are provided with enough time to prepare."

So the RIAA want Jammie to appear at trial either pro se or with under-prepared counsel. Isn't getting an unfair advantage over your opponent what an adversarial system of justice is all about? [/sarcasm]

ChrisP; May 15, 2009 at 8:13:00 PM EDT
Disgusted said...: When will this nightmare end? Its amazing that our country's justice system is allowing the RIAA to continue in this way.; May 15, 2009 at 8:17:00 PM EDT
Anonymous said...: Obama's choices for the Justice System of late have been former lawyers who have been paid by the spoils of a war created by the RIAA. Nightmare is a term that does not begin to describe the personal horror thousands of individuals have endured at the hands of this particular cartel in the recording industry.

Oldphart in Kansas; May 16, 2009 at 3:01:00 AM EDT
eZee.se said...: Just another example of the stupidity of allowing this to go on for 5+ years... such an unfair advantage on the scumba...oops, RIAAs/cartels side, they can afford to sit back and relax even if they paid a bunch of vultures the maximum per hour rate for 24/7/365 - while on the other end a poor woman is suffering to make ends meet and still has to worry about defending herself against accusations backed by what can be generously described as "faulty" data from the RIAAs "investigators".

Were I the judge...Now THERES an idea! I have no clue as to how it works so am just asking what may be a stupid question but... whats stopping you from becoming a judge Ray?

I think having a Judge that really "gets it" and who is not afraid to speak up on the injustices commited for more than half a decade, and who would rule more justly, would be much more valuable than a lawyer who kicks bullies asses in court.
IMHO anyway.

Cheers!
Ryan
www.eZee.se; May 16, 2009 at 11:24:00 AM EDT
Anonymous said...: eZee.se -

First, the Judicial Conference surveys the state of the federal courts and determines whether more judges are needed. Then, they report to Congress, who has the authority to create new positions within the circuit courts of appeal and district courts. Then, the President nominates judges to fill those new positions (or vacancies if someone retires) who must then be confirmed by Congress before serving their appointment.

-JudgeJules; May 16, 2009 at 9:59:00 PM EDT
eZee.se said...: OIC, thanks for that JJ.

I used to think that once you have had a certain number of years practicing (or other such experience eg: X number of cases... or a combination of years practicing + age above X) you could then take a kind of exam.

Learned something new, thanks!; May 16, 2009 at 11:03:00 PM EDT
Anonymous said...: Mr. Toder says he has put in "thus far $129,485 of uncompensated for time."

So - how could he have NOT found directly relevant and controlling 8th Circuit opinion that any decent law student could have found in a few minutes?

The Judge had to find it himself.

I'll bet that Mr. Toder has been offered much pro bono help here. There's also been a lot of useful legal commentary all over the internet.

The irony is that, had he worked harder at defending Ms. Thomas and not on getting himself off the record, he might have hit a grand slam and very public home run that would have been very career enhancing.; May 17, 2009 at 7:32:00 PM EDT
Eric said...: I can just hear the RIAA arguments... Since Jammie Thomas "endorses" the withdraw of council then why should the RIAA further delay the trial?

Of course the reality is that sometimes it just doesn't work out. I'll bet that Jammie Thomas does not have the finds to pursue a second trial but without a motion to withdraw the lawyer is morally bound to continue appearing. This of course means, short of a Pro Bono lawyer, she will have to appear alone as no other law firm in their right mind would defend a civil case where the client does not have assets to cover such a trial. It looks like this poor woman will have spent her last dime defending herself. I wouldn't be surprised if she ends up having to declare BK after this is all over.

Doesn't the Judge see the inequity in this case? Do they even care?

Doesn't this further the argument in the other case where the defendant was seeking enhanced damages due to the difficulty finding, retaining, and keeping a lawyer to fight the RIAA?; May 17, 2009 at 8:09:00 PM EDT
Anonymous said...: Eric:

The judge has a clear idea about the financial burden this is to defendant. You should read the document where the judge threw out his old ruling and ordered a new trial -- he asks Congress to revisit the law and fix it.

XYZZY; May 17, 2009 at 9:04:00 PM 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