Friday, March 24, 2006

John Doe #48 Replies to RIAA in Motown v. Does 1-99

John Doe #48 has served his reply memorandum of law* in Motown v. Does, pointing out that the RIAA's opposition papers were "smoke and mirrors" since, among other things, they

-ignored controlling legal authorities;
-offered no evidence at all;
-made a fabricated contention that Does 1-99 acted together;
-did not dispute the facts contained in the affidavit of programmer Zi Mei;
-attempted to confuse the Court by mixing up "expedited" discovery with "ex parte" discovery;
-cited completely irrelevant authorities;
-frivolously argued that "ex parte" decisions, including the Court's own "ex parte" ruling in this case, should be treated as authoritative precedents;
-frivolously argued that treaties are the same as statutes, and that a treaty should take precedence over the statute which authorized it;
-frivolously argued that the Court was bound by a letter from an employee of the Copyright office;
-frivolously argued that merely having files in a shared files folder is in and of itself a copyright infringement; and
-ignored the RIAA's own testimony before the FTC that most people with file sharing software do not even know what files on their computer are subject to being "shared".

The reply memorandum completes the briefing of John Doe's motion to (a) vacate the ex parte discovery order, (b) quash the subpoena, and (c) sever and dismiss as to John Does 2-99, in Motown v. Does 1-99, Docket No. 05 CV 0112 (NRB), pending before Judge Naomi Reice Buchwald in the United States District Court, Southern District of New York, in Manhattan.

Judge Buchwald has stayed her previously issued ex parte discovery order and subpoena pending the determination of John Doe #48's motion.

* 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...


Ray Beckerman said...

Thanks, Code.

virtualchoirboy said...

Very nicely done. I'm not sure of the exact terminology, but I like the final footnote (11?) suggesting that the Plaintiff provide evidence as to why sanctions should not be levied against them. I would *REALLY* like to see the ??AA groups fined for this constant harrassment of people through the court system.

KentL said...

On behalf of my students, I'm grateful to you and your firm for your compelling and elegant arguments against the RIAA. Keep up the great work!

Ray Beckerman said...

Dear kentl and virtualchoirboy:

Thank you for your support, it means a lot to us during these dark days.

Hopefully the judges will start bouncing these phony cases, and it will all have been worth it.

Best regards,


StephenH said...

I hope the court grants the motion to sever. I think they need to follow the protocol established by BMG Music v. Does 1-203, Interscope Records v. Does 1-25, and In Re: Cases Filed by Recording Companies

StephenH said...

To Ray Beckerman,

I comment the word Belock Levine & Hoffman are doing in regards to taking on RIAA John Doe Cases. I think the RIAA should end this madness and put in a compensation mechanism to really solve the artist compensation problem for P2P, instead of this long lawsuit campaign.

Marsvenge said...


Excellent indeed!

Not only has the RIAA not disputed the facts in Zi Mei's affidavit, they actually conceded a key point (thru a half truth).

On p. 4 & 5 of their Memorandum of Law In Opposition to Motion they state:

"Time Warner maintains logs that match IP addresses with their users’ computers. By looking at its IP address logs, Time Warner can match the IP address, date, and time with the computer that was using the IP address when Plaintiffs observed the infringement. Thus, Time Warner—and only Time Warner—can identify the Defendant in this case."

Amazingly, they state that Time Warner's logs match IP addresses with computers (maybe if there is no router) but then make the outlandish claim that Time Warner can identify the Defendant. How is that possible when Time Warner's logs do not show who was using the computer at that specific point in time?

And speaking of specificity the RIAA also argued:

"Indeed, it makes no sense generally in copyright suits to require a plaintiff to allege with
specificity when and how an infringement occurred since such actions are not typically done in
plain sight of the copyright holder. Piracy typically takes place behind closed doors and beyond the watchful eyes of a copyright holder."

Why are they arguing a general case when (as seen in the same quote from p. 4 & 5 of their own argument), in this particular case, they require specificity to match IP addresses, date and time
to the ISPs' logs for infringement that they claim to have observed?

Sanctions should be the least of the actions taken again them.

David Fedoruk said...

Its good to see people fighting back against an insdustry that has steadfastly refused to listen to their customers or to face reality!

I have been reading some of the judgments and court proceedings on for quite some time, and have been quite impressed that judges with little or no technical background can make some pretty good sound judgements when presented with good factual information. Sometimes their lack of knowledge is a good thing and it has pushed both sides into explaining themselves in terms that most lay people can understand. No one gets to blur the issues when they are forced to reduce things to the simplest of terms.

In this case, decoding all the RIAA babble about who's to blame for their own marketing failures is a good thing. When you're sales are down, you don't look for a scapegoat, you look at yourself to see what you can do to change things. The music industry has never been good at this, nor have they ever been good at listening to their customers.

StephenH said...


This is what I have been saying along. IP Addresses don't identify people. Something as simple as a friend using ones computer, or a router on the connection can prove this wrong. This also exists if one is routed via a proxy server or VPN tunnel.

StephenH said...

I also commend your firm for taking on these "John Doe" cases. I think the only way for the RIAA to stop this madness is for some precidents to be set, that protect a user, and stop "gulity until proven innocent" tactics, and the evil "Settlement Support Center" tactics.