Recording Industry vs The People

Monday, October 17, 2005

RIAA Spent $14.5 Million in Legal Fees Last Year

According to a report in p2pnet.net, the RIAA spent $14.5 Million on legal fees last year.

Appeal Filed in Loud v. Does

On Monday, October 17th, "Jane Doe" filed an appeal from the "memo endorsed" order of Judge Robert W. Sweet, entered October 14, 2005, in a peer to peer (p2p) music file sharing case, Loud v. Does denying "Jane Doe"'s motion to quash subpoena. (Alternate link for October 14th order)

The order of Judge Sweet is in the United States District Court for the Southern District of New York. The appeal is in the United States Court of Appeals for the Second Circuit.

Copy of order appealed from:

The order stayed its effect for ten (10) business days in order to give "Jane Doe" time to file an appeal and make an emergency motion for a stay in the United States Court of Appeals for the Second Circuit.

Appeal documents:

Notice of Appeal to U.S. Court of Appeals for Second Circuit
Appeal preargument statement

Affidavit of Ray Beckerman in support of motion for stay
Motion information statement in support of motion for stay

Prior papers:

Complaint.

Jane Doe's Notice of Motion to Quash Subpoena
Affidavit of Morlan Ty Rogers in Support of Motion to Quash
Exhibit A
Exhibit B
Jane Doe's Memorandum of Law in Support of Motion to Quash

Memorandum of law in opposition
(Alternate link)(Alternate link #2)(Alternate link #3)(Alternate link #4)
Appendix to Memorandum of law in opposition
(Alternate link)(Alternate link #2)(Alternate link #3)(Alternate link #4)

Jane Doe's Reply Memorandum of Law
(Alternate link)(Alternate link #2)(Alternate link #3)

Judge Issues Handwritten Order in Loud v. Does Denying Motion to Quash and Staying Order to Give Time for Appeal & Emergency Motion

Judge Robert W. Sweet issued a "memo endorsed" (handwritten) order in Loud v. Does, denying "Jane Doe"'s motion to quash subpoena. (Alternate link)

The lawyers for Ms. "Doe" are Ray Beckerman, Morlan Ty Rogers, and Daniel A. Singer of Beldock Levine & Hoffman LLP

New Motion to Quash by Another Jane Doe in Interscope v. Does

In another peer to peer (p2p) filesharing action brought by the RIAA in Manhattan federal court, this one before Judge Richard J. Holwell, a "Jane Doe" has moved to quash the subpoena issued to her ISP, based upon the insufficiency of the underlying complaint for failure to allege specific acts, dates, and times of copying.

Complaint
(Alternate link)

Notice of Motion
(Alternate link)
Affidavit of Daniel A. Singer
(Alternate link)
Memorandum of Law
(Alternate link)
Exhibit A
(Alternate link)
Exhibit B
(Alternate link)

The motion is returnable on December 7th, 2005, at 10:00 A.M., in Manhattan federal district court, before Judge Holwell.

The lawyers for defendant are Ray Beckerman, Morlan Ty Rogers, and Daniel A. Singer of Beldock Levine & Hoffman LLP

Friday, October 14, 2005

"Jane Doe" Motion to Quash Subpoena Denied From the Bench by Judge Sweet

Jane Doe's motion to quash subpoena in Loud v. Does, a peer to peer file sharing case against a number of "John Doe" defendants, was denied, from the bench (i.e. immediately), by Manhattan Federal Court judge Robert W. Sweet on October 12th.

The judge concluded that plaintiffs' alleging "continuing infringement" from the date of the complaint is sufficient.

The judge stayed the effect of the order for ten (10) days, to enable the movant to file an appeal, and an emergency motion for a stay, with the United States Court of Appeals for the Second Circuit.

Judge's "Memo Endorsed" Order (Handwritten order written on face of moving papers) dated October 12, 2005

A full set of the motion papers is set forth under "Loud v. Does" at http://recordingindustryvspeople.blogspot.com/2005/10/index-of-litigation-documents.html.

The lawyers for defendant "Jane Doe", a person whose IP address was allegedly used by someone setting up a p2p filesharing account, are Ray Beckerman, Morlan Ty Rogers, and Daniel A. Singer of Beldock Levine & Hoffman LLP

The motion was argued by Mr. Rogers. Mr. Beckerman had this to say about the outcome: "It is most unfortunate that the Court concluded that merely making a vague and conclusory allegation that defendant has committed a continuing infringement since the day of the complaint, without any substantiation of the allegation, is a sufficient basis for upholding these subpoenas. We find this result to be inconsistent with the rules for pleading copyright infringement, and, if we are requested by our client to do so, will file an appeal."

Wednesday, October 12, 2005

Jane Doe's Motion to Quash in Loud v. Does to be argued in Manhattan Federal Court at 12:00 noon today

Jane Doe's motion to quash subpoena in Loud v. Does is scheduled to be argued today at 12:00 noon in Manhattan Federal Court, before Judge Robert W. Sweet. Courthouse is 500 Pearl Street. Courtoom is 18C.

10/12/05
-R.B.

Tuesday, October 11, 2005

National Law Journal: RIAA Defendants "Fighting Back"

The National Law Journal reports:

Music piracy defendants fighting back

Settling resisted, counterclaims filed.

By Tresa Baldas
Staff reporter
October 10, 2005

When attorney John Hermann took on his first music piracy lawsuit recently on behalf of a woman who was being sued by the music industry, he was skeptical.

"I thought I was the only one stupid enough to take on one of these cases," he recalled.

He was wrong.

In the last year-particularly in the last six months-a growing number of defendants have refused to settle music industry suits, challenging what they allege are groundless lawsuits filed by the Recording Industry Association of America.

In the last two years, the RIAA has filed 14,800 lawsuits against individuals for illegally downloading and distributing copyrighted music on the Internet.

While the RIAA holds that most suits settle, attorneys note that many defendants have started fighting back.

In New York, a single mother of five has hired a lawyer to fight her copyright infringement suit, claiming a kid's friend may have downloaded copyrighted material without her knowledge.

In Seattle, another parent is challenging the RIAA, adamantly denying any illegal downloading. In Oregon, a defendant with an 8-year-old daughter is fighting claims that she downloaded "gangster rap" music at 4:30 a.m.

And in Michigan, three other RIAA lawsuits are facing opposition, including a case against a 14-year-old girl, and another action against the owners of a daycare center. "The cases are just starting to trickle through the court system and as a result we're starting to see objections," said Hermann, a solo in Berkley, Mich., who is handling the Michigan lawsuits.

Hermann and other defense attorneys allege that the RIAA is using "scare tactics" to force settlements, intimidating defendants into paying up before they can seek legal help, or dispute the charges. So far, about 3,400 of the RIAA suits have reached settlement.

Complete Text of Article

Monday, October 10, 2005

"Privacy vs. Intellectual Property" by Timothy Valdez; Study of Detection Methods Used by RIAA

Interesting article about the detection methods used by RIAA in its campaign against peer to peer file sharing:
"Privacy versus Intellectual Property: Detection Methods Used by Copyright Holders" by Timothy Valdez.

Friday, October 07, 2005

Interscope v. Does yet another RIAA p2p case, against 100 "John Does" in Manhattan Federal Court

As part of its mass litigation campaign against individuals whose names are associated with IP addresses which are associated with peer to peer file sharing accounts, the RIAA commenced, on August 31st, yet another mass case against "John Doe" defendants who do not even know they have been sued, in Manhattan Federal Court.

This case names 100 "John Doe" defendants, and is assigned to District Judge Richard J. Holwell. This litigation is captioned "Interscope Records v. Does 1-100.", and is under docket number 05-CV-7667 (RJH).

As with all of its other cases, the RIAA sought and obtained an ex parte order granting it discovery. ("ex parte" means without the other side having notice or an opportunity to be heard in opposition).

People in the metropolitan area have been receiving notices from Time Warner Cable, an internet service provider, that it has been subpoenaed to turn over their names and addresses to the RIAA in this new case. The subpoena Time Warner attaches to their letter is returnable October 26, 2005.

At least one "Jane Doe" is making a motion to quash the subpoena. She is represented by Ray Beckerman, Morlan Ty Rogers, and Daniel A. Singer of Beldock Levine & Hoffman LLP

Complaint.
(Alternate link)

Loud v. Does motion to quash fully briefed

"Jane Doe" has submitted her reply memorandum of law in support of her motion to quash subpoena in the peer to peer fileshare case pending before Judge Robert W. Sweet in Manhattan federal court, Loud v. Does, thus completing the briefing process.

Jane Doe's Reply Memorandum of Law
(Alternate link)

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