Recording Industry vs The People: RIAA files Appellees' Brief in 2d Circuit in Arista v. Does 1-16

Saturday, June 27, 2009

RIAA files Appellees' Brief in 2d Circuit in Arista v. Does 1-16

In its case targeting students at the State University of New York at Albany, Arista Records v. Does 1-16, the RIAA has filed its Appellees' Brief in the US Court of Appeals for the Second Circuit.

The "John Doe" proceeding in the court below has been stayed pending the determination of the appeal.

Appellees' Brief

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

4 comments:

Alter_Fritz said...: It is absolutely unbelievable how these lawyers from HRO and Co. always try to get away with blatant lies!

They lie that they identified defendant as an infringer! (If at all they have identified a network device that was running the p2p software.) They have ABSOLUTELY no idea who was operating the device or if defendant has anything at all to do with the infringement in the slightest beside the fact that he might be the party that had a contractual relationship with his Internet service provider to provide him with internet connectivity!

Plaintiffs layers lie when they claim that the company /institution who provides internet access has identified the defendants as infringers. They have not done so!
Just because Plaintiffs write in their subpoena that they want the names/adresses and such stuff of infringers from the ISP's does not make the answer the ISP's into such a thing.
In fact even at least one university was smart enough to read exactly what Plaintiffs demanded from them and told them that they can NOT identify INFRINGERS, only persons that had a contractual relationship with them to lease a particular IP at a particular Time!
And I know of at least one court (*) that ruled against Plaintiffs demand for a subpoena which makes the lawyers statement that no court ruled against their demands just another lie.

It is unbelieveable for me where the HRO lawyers take the guts from to lie and misrepresent in their paper here even more objective (technical) facts so blatantly even to an US appeals court!

(*) 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; June 27, 2009 at 7:59:00 PM EDT
Anonymous said...: I can't wait until the RIAA's lies catch up to them!; June 28, 2009 at 5:48:00 AM EDT
Anonymous said...: The general argument of the RIAA that we cannot pursue these cases and protect our copyrights under the existing rules and laws and therefore we deserve special dispensation because our buisness is being killed otherwise should be rejected outright. You don't get to rewrite the law just because it doesn't favor you.

{The Common Man Speaking}; June 28, 2009 at 5:06:00 PM EDT
Eric said...: p2/3pdf. How is this not fodder for the class action/collusion angle. The disclosure page is a who's who in audio publishers probably representing over 90% of all sales in the market.

p14 in pdf. "This appeal concerns only one issue - whether one party can obtain identifying information about the user responsible for an Internet account from which copyright infringement activity occurred on a specific date and time".

1) MS downloads are not infringement.

2) They are now arguing *point in time* and not continuing distribution. Can estoppel be claimed moving forward if this cases does get bumped back? Does this mean they can *only* argue the MS downloads at trial ( which are not illegal since MS was an agent of the copyiright holders ). This is a BIG misstep as far as I'm concerned. They also contradict themselves on p38pdf.

3) There are serious questions as to the legitimacy of the identification.

4) The user is only the putative copyright infringer whose right will be constrained by a civil case that will essentially wipe them out. They might as well be carrying out this case in Bankruptcy court as that's where a win for the Plaintiff's will end up.

p15 in pdf "the conduct of the Recording Industry Association or America ( not even a party to this action )".

OMGWTFBBQ, they are the ones who have coordinated the lawsuits, they are the ones who appear to be profiting from the lawsuits, their lawyers are the ones working these suits, they talk about it on their website, how the hell are they not a party to this mess.

p19 pdf: Statement of facts REEKS. "sustained devastating losses" -lie there is 0 proof of a devastating loss of profits to the copyright holders.

p20pdf: "P2P users who disseminate (upload) and copy ( download) copyrighted material violate the Copyright Act" - oversimplification to the point of being a lie.

p21pdf "Doe 3 was identified as an infringer" - HUGE LIE, the mac address assigned to Doe 3 at the beginning of the school year was "identified".

p21pdf "no court has denied on the merits Plaintiff's requests that identifying information be provided by the infringes ISP." - Um, except for those other cases where the John Doe subpoena's were quashed.

p38pdf. This is really the lynch pin. They argue that they don't have to prove a specific act of infringement in order to proceed to destroy defendant legally. This should be read aloud to every jury reviewing these cases.

p40. Infringement happened at 2:15am EDT. Doesn't Doe 3 just have to prove that he was, more than likely, asleep like everyone else to show that he was not controlling the computer at the time the alleged infringement occurred. Even more likely his computer may have been off leaving his mac address a candidate for theft by anyone else on the same subnet ( thousands of ethernet jacks ).

Q for the lawyers. In a case where defendants have been unable to make an argument in a lower court because proceedings have not gotten that far are they still barred from bringing it up at the appellate level in a unique case such as this? Especially when those arguments are about the bad acts and motives of the Plaintiff's whose sole goal here is to make a statement, not reclaim any profits ( their best case for recovery here will not even touch the costs racked up so far in this case ).; June 29, 2009 at 11:42:00 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