Recording Industry vs The People: RIAA replies to Nesson response in SONY v. Tenenbaum

Thursday, July 09, 2009

RIAA replies to Nesson response in SONY v. Tenenbaum

The RIAA has filed a reply responding to the Nesson response in SONY BMG Music Entertainment v. Tenenbaum.

Plaintiffs' reply to Nesson response

[Ed. note. It was my impression based upon prior practice in this case that in Judge Gertner's courtroom one has to ask leave of court to file reply papers; these are clearly reply papers, and I do not recall there being any motion for permission. -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

13 comments:

The Common Man Speaking said...: He said, she said.; July 9, 2009 at 7:18:00 PM EDT
Anonymous said...: "It is time for a sense of decorum and professionalism to be imposed on a case that seems to be lacking in it."

sigh; July 9, 2009 at 8:28:00 PM EDT
WeatherGod said...: While it might be believable that the plaintiffs didn't realize that an audio recording was occuring, I seriously doubt that they did not realize that a video recording was happening.

A video recording from an Apple laptop would require that a USB camera be used (which should be obvious to anyone in the room), or that the laptop screen be facing the party members so that the iSight camera can capture the video. With the exception of tiny hidden cameras, everyone in the room should have realized right away what was going on. In addition, if there was recording going on that the plaintiffs objected to, why didn't they file something right then?

I guess this proves the point that any agreement between two adversarial parties should make it in writing with signatures, but I doubt even that would stop this petty bickering.; July 9, 2009 at 8:44:00 PM EDT
Anonymous said...: Anybody read numbered paragraph 3. closely??

Kip; July 9, 2009 at 8:47:00 PM EDT
Alter_Fritz said...: now these words out of the wordprocessing software of "RIAA-EVE"

with all due respect; what a farce!

SHE was the one who obviously noted the "tiny black olympus" lying allegedly openly on the conference table and it was SHE who did not expressed ANY objections then to having the deposition taped by Charles Nesson!
It seems typical for this Holme Roberts & Owen Lawyer Eve Goldstein Burton to have an "extra creative way of representing facts/events in her courtpapers"!

And what is it with this newly shyness regarding the images of the lawyers working for the MAFIAA? Has HRO and or the other firms that took those cases already removed the ability to search their own websites for the pictures/CVs of the lawyers?

and one last serious question: In germany the content industry was running an "education campaign" which I would consider tainting a jury pool (if we had the concept of juries that is) and they even did that with a clear lie about the law "Raubkopierer sind Verbrecher!"
Question: Did the plaintiffs in this case used similar jury pool tainting measures in american cinemas, on TV and in newspapers/magazines which planted misinformation into the heads of potential jurors?
And if that is the case, should Professor Nesson not be complimented by the court for making the pure objective facts public instead of what the plaintiffs demand that should be done to him?; July 9, 2009 at 9:28:00 PM EDT
Anonymous said...: If they don't want it to become a circus, they should stop acting like clowns.; July 9, 2009 at 9:38:00 PM EDT
Eric said...: I hate the RIAA as much as the next internet user, but pushing the Judges buttons is not how you win a case.; July 9, 2009 at 10:22:00 PM EDT
Anonymous said...: Sigh, thank god this farce is almost over. Or, should I say, this round of this farce is almost over.

On one hand, we have the Copyleftists and on the other, we have the MAFIAA. It's like a bad (worse) episode of Deadliest Fighter with the most ludicrous characters possible.

Can't the national Bar assn. do something about censuring all the lawyers involved in these proceedings?

Seriously.

This is beyond ethics breaches, these lawyers make a mockery of the profession.

- JBC; July 9, 2009 at 11:14:00 PM EDT
Jim said...: "6. Plaintiffs seek to litigate this case without it becoming a circus."

LOL that is to funny, I was glad I didnt have a mouth full of coffee when I read it. The RIAA doesnt want a circus?; July 9, 2009 at 11:15:00 PM EDT
Anonymous said...: Nothing the RIAA said changes anything -- in particular their claims about not knowing they were being recorded sound absurd.

So anyway, it seems like Nesson ignored what the judge said, and since it appears the judge thinks so too, that could be a problem for Nesson and Tenenbaum.

XYZZY; July 10, 2009 at 9:02:00 AM EDT
The Common Man Speaking said...: @JBC said:

Can't the national Bar assn. do something about censuring all the lawyers involved in these proceedings?

That's the best laugh this man has had today.

Is there even a national Bar Association? Lawyers are licensed by particular state bars.

And you're expecting lawyers to punish other lawyers? That's like asking judges, who are former lawyers, to sanction lawyers. The theory is there that it can happen, but don't hold your breath unless you want to show the rest of us just how blue you can become.; July 10, 2009 at 2:05:00 PM EDT
Anonymous said...: @The Common Man:

"Is there even a national Bar Association? Lawyers are licensed by particular state bars."

Let's see... There's "American Bar Association" and their Center for Professional Responsibility, the "American Intellectual Property Association," the "Federal Bar Association," and a whole big list you could have found at, say, http://www.findlaw.com/06associations/national.html. (Not to mention the actual National Bar Association, though they would have nothing to do with this particular case.)

For the record, many professions are state licensed but oversight also happens at the national level, like medicine (nurses, NPs, physicians, etc).

And if you think that judges don't censure lawyers (or other judges) for breaches of ethics then you really need to learn more about the profession. In fact, Judge Gertner herself was called out by the Court of Appeals just for trying to set the record straight in a public forum on a previous case before her.

Meanwhile, back to the question at hand; Ray, what do you think? Do you see some form of ethics inquiry in the future for these lawyers?

- JBC; July 10, 2009 at 5:22:00 PM EDT
T2 said...: I actually believe the RIAA's counsel when they claim they were not aware they were being recorded (audio or video). After all, the RIAA and its members have demonstrated repeatedly their lack of understanding regarding new technologies. I am frankly in awe that RIAA counsel is able to submit their court filings electronically. I'd expect papyrus or (to charge their clients much more than necessary, as unethical litigators often do) carvings on high-quality (imported) Siena marble.

Nesson may want to use this incident to point out to the court that RIAA litigators lack even rudimentary tech skills --- and therefore claims they make regarding technology are to be taken with a grain of salt the size of Manhattan.; July 10, 2009 at 10:13:00 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