Friday, March 31, 2006

2 John Does From Across the Country Team Up to Fight Back Against RIAA in Warner v. Does 1-149

Two "John Does", one from the Southwest, the other from the Greater New York area, have joined forces to fight back against the RIAA in Warner v. Does 1-149.

What they have in common is that both discovered recently that they are named as "John Does" in the same case pending in Manhattan federal court.

In September, 2005, the RIAA brought one of their typical John Doe cases, in Manhattan federal court, Warner Bros. Records v. Does 1-149.


The case was first assigned to Judge John G. Koeltl, who recused himself.

The case was then reassigned to Judge Alvin K. Hellerstein, who likewise recused himself.

Then the case was reassigned to Judge Richard Owen, who granted the RIAA's "ex parte" applications for discovery, and authorized subpoenas to be served on the internet service provider Time Warner Cable.

Ex Parte Order.*
Second Ex Parte Order.*

The subpoena is returnable Monday, April 3rd.

John Doe #37 and John Doe #61 have both hired Ty Rogers and Ray Beckerman of Beldock Levine & Hoffman LLP to make a motion to (a) vacate the ex parte discovery orders, (b) quash any subpoenas issued under the orders, and (c) sever and dismiss the action as to John Does 2-149.

John Does' Notice of Motion*
Affidavit of Morlan Ty Rogers in Support of Motion*
Affidavit of Zi Mei in Support of Motion*
Memorandum of Law in Support of Motion*

John Does 37 and 61 have asked Judge Owen for a stay of the ex parte order and subpoena pending determination of their motion, since the turning over of their identities before the motion is decided would moot the motion.

March 31, 2006, Letter of Morlan Ty Rogers Requesting Stay

The RIAA agrees to a stay, but argues that the stay should only apply to the moving defendants and not to the other 147 defendants.

March 31, 2006, Letter of J. Christopher Jensen Opposing Stay as to Other 147 Defendants

Ray Beckerman, the author of this blog and one of the attorneys for the moving parties, had this comment:

It is a matter of great significance that two different John Does have teamed up in the same case. This cuts the legal costs to each litigant by half, thus reducing the overall economic balance which ordinarily inheres in these cases. I hope this presages a new trend: people banding together to fight back. The old adage 'united we stand, divided we fall', is very important in the war against the RIAA's litigation machine.

* Document available online at Internet Law & Regulation

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs


CodeWarrior said...

Why did Judge John G. Koeltl and Judge Alvin K. Hellerstein, recuse themselves in this matter?

It seems unusual for TWO judges to serially recuse themselves in this manner (i.e. unusual to me as a layperson).

raybeckerman said...

I wonder myself, Code.

Don't know.

It is unusual for 2 judges to serially recuse themselves in this manner.

Not at all unusual, however, for them to be silent as to the reason for recusal.

One possible reason for such recusals is that the judge owns stock in one or more of the corporations -- but I would think that most federal judges keep their assets in non-stock types of investments, or in blind trusts.

So it's a mystery.

Judge Owen, by the way, is a music-oriented guy. He writes operettas, I believe.

lawdawg said...

I wonder if the first two are or have downloaded music in the past. It's amazing the number of people who have used Napster, Kazaa or the like (or whose children have).

Second, I would think that Judge Owen should definitely recuse himself, unless he never sells or plans to sell his compositions. As an artist he stands to gain directly (albeit a pittance) from any RIAA recovery. Am I right?

TikiPundit said...

Judge John Does?

raybeckerman said...

Dear lawdawg,

1. The RIAA companies aren't composers. They don't own the copyrights in the songs. Just the copyrights in the sound recordings.

2. Judge Owen would only have a financial interest if he were a performer on sound recordings. Even then, the interest would only be theoretical, as it is quite rare for a performer of a sound recording to actually be getting royalties from the sound recordings beyond his or her initial advance, due to the structure of recording agreements, which provide that the record company has to "recoup" a lot of actual expenses plus a lot of mythical "expenses" before the performing artist sees dollar one.

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