Recording Industry vs The People: Followup Interrogatories Served in UMG v. Lindor

Tuesday, August 08, 2006

Followup Interrogatories Served in UMG v. Lindor

Marie Lindor has served a set of followup interrogatories in UMG v. Lindor.

Defendant's Second Set of Interrogatories

In response to her first set of interrogatories in which she asked the plaintiffs for the "evidentiary basis" for their allegation of copyright infringement, she received only a vague response. At a July 25th conference, she was given permission by the Magistrate to serve followup interrogatories.

Keywords: digital copyright online 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

5 comments:

Alter_Fritz said...: Ray Ray, you are as smart as a fox! :-)
Specialy #7 is nice, I think.
As some computer freaks have told me this kazzaa thingy has no such functions implemeted and has EULAs / AUPs / TOS that does not allow the harvesting of IP-adresses.
So it would be interesting how MediaSentry and Co. are doing their "investigations".
Maybe they violated some local/state/federal Laws or Contracts while doing it ;-)

(P.S. Please consider to change the setup for comments from "only blogger and instant publishing" to "everybody but visible only after approval". I bet there a more people out there that would like to comment on one or another of your postings but are to lazy to register an blogger account specially for this privilege to give you feetback/comments)
__; August 8, 2006 at 9:25:00 PM EDT
raybeckerman said...: Dear "alter fritz":

Thank you for your kind words.

I tried leaving the comments open to anyone but got too many trolls.

The RIAA isn't fond of my blog.

Best regards,

Ray; August 8, 2006 at 11:23:00 PM EDT
Alter_Fritz said...: Hm, last time i checked commonly accepted knowledge was that lawyers are from the species sharks;
http://tinyurl.com/lrjm4

It is new knowledge to me that these "contra people"-lawyers are also Trolls! ;)

Anyway, thanks for the Info and keep up the good work by defending those people, which their only "wrongdoing" is paying an internetbill, against those frivolous boilerplate complains by the RIAA and their "sharky-lawyers".; August 9, 2006 at 1:44:00 AM EDT
raybeckerman said...: Dear alter fritz:

1. I don't think the trolls were lawyers.

2. I think it's unfortunate that people tend to lump lawyers together as a bunch of sharks; there are great people in this profession; and there are not-so-great people, like the attack dogs willing to help the RIAA oppress its victims.

3. I made some kind of mistake on the computer yesterday, and instead of posting the "followup" second set of interrogatories wound up posting the first set of interrogatories. I've got it corrected. Take a look at the second set.

Best regards

Ray; August 9, 2006 at 8:51:00 AM EDT
StephenH said...: Ray,

I think you should consider filing a Class action on behalf of consumers suing RIAA, KaZaa, LimeWire, Morpheus, MediaSentry, MediaDefender, Settlement Support Center and all their member companies, asking for a declaratory judgement on the following:

1) A declaration that having a P2P program on ones computer is lawful

2) A declaration one can legally download a song from a P2P network from a bank which sharing the song has been authorized by its copyright holder to be shared via P2P.

3) That downloading a copyrighted major label song from a P2P network is legal, if you already own the CD that has the song on it, under the Fair Use Doctorine.

4) That one is allowed to share files they created themselves on P2P networks.

5) That "Simply Making available" without PROVING ANY EVIDENCE, is not enought to be considered copyright infringement.

6) That all the RIAA's agents including MediaSentry, BayTSP, MediaDefender, OverPeer, Ranger, and others are engaged in unlawful spying and harvesting of IP addresses under the fourth amendment.

7) A declaration that an IP address and a time, along with a computers mac address is not enought evidence to prove ones indentity, and that IP addresses, Mac Addreses, and times cannot be interpreted as DNA evidence.

8) A declaration that the person paying the bill for internet access is not liable for the actions of roommates, friends, officemates, classmates, or strangers that use a certain computer and/or internet connection.

9) A declaration that a person is not liable for the actions of roommates, friends, officemates, classmates, or strangers, and others that share a persons internet connection to whom the internet account holder they are not married to, by connecting to computers the person does not own via Ethernet, Wireless, or other internal network connections via means on additional IP addresses, network address translation, VPN, Proxy Tunneling, and other means.

9) A declaration that simply forcing people to pay without getting a judgement violates both Rackeetering Statuates and the fair debt collection practices act.

10) A declaration that settlements without negotiation from both parties abuses the legal process.

I bet if you win this, RIAA will surrender!; August 9, 2006 at 8:14:00 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