Recording Industry vs The People: RIAA Follows Through on Threat to Seek Gag Order in UMG v. Lindor

Wednesday, August 16, 2006

RIAA Follows Through on Threat to Seek Gag Order in UMG v. Lindor

The RIAA has followed through on its threat to seek a gag order in UMG v. Lindor, one which would enable it to designate all or part of each deposition transcript as confidential, and would put the burden on Ms. Lindor of proving why the public should have access:
August 14, 2006, Letter of Richard Gabriel to Magistrate Robert M. Levy*
Exhibit A*
Exhibit B*

Ms. Lindor's lawyers replied the same day:
August 14, 2006, Letter of Morlan Ty Rogers to Magistrate Robert M. Levy*
Exhibit A*

See also Ms. Lindor's motion to compel plaintiffs' depositions:
August 10, 2006, Letter of Ray Beckerman to Magistrate Robert M. Levy*

* Document available online at Internet Law & Regulation

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

7 comments:

Alter_Fritz said...: Plaintiff's Counsel Mr. Gabriel tells the Judge:

[...]defense counsel has made clear his intend to publish,often inaccurately, everything he can about this case
[bold markings by me]

This raises a few question in my mind:
1) When defence counsel simply publishes links to publicly filed court documents, how can that action be "often inaccurately"? Does Plaintiff's Counsel want to indicate that genuine official UScourt documents are "rubbish and often inaccurat"?

2) If Mr. Gabriel's Claim about inaccuracy is not based on objective facts, does writing a request to a judge with this very likely false statement in it equals his action to something like "lying to a US Judge?"

(Disclaimer: English is not my mother language, Forstanding words might not be very well choosen. In Case plaintiff's counsel feels pissed about my comment; before suing me I would request he asks me for what I wanted to express in my motherlanguage german, thank you); August 14, 2006 at 7:42:00 PM EDT
raybeckerman said...: Thank you, "alter_fritz". I would also like to know what he contends is inaccurate. The only thing "inaccurate" is Mr. Gabriel's court papers.; August 14, 2006 at 8:34:00 PM EDT
CodeWarrior said...: For some time now, I have been a voice, apparently crying in the wilderness asking why a Congressional investigation has not been undertaken with regard to questionable practices, actions, and tactics employed by the RIAA and the toadies working for them.

I know this is slightly off topic, but this news item just brought this post to my forefront.

Keep up the good work Ray...God Bless You...

~Code
http://codewarriorz.blogspot.com; August 15, 2006 at 10:23:00 AM EDT
eclectica said...: They want to silence you because you bring great shame to them, for exposing what they do to the public.; August 18, 2006 at 4:42:00 AM EDT
Alter_Fritz said...: eclectica

There is an easy solution to this "shame problem"
All that's needed is: They must stop their sue 'em all campaign of average citizens that have had a handfull (or 2)of files named like RIAA-artists in a shared folder.

It's not Ray's fault that they are such well-known and respected record companies [quotation from a describer payed by RIAA!]; August 18, 2006 at 9:09:00 AM EDT
Alter_Fritz said...: Ray, earlier I told you that Mr. Gabriels "strange" arguments raised a few questions.
But now, after seeing his Exhibit A, I'm completely clueless. Please help me out. As a Laywer yourself you might have an idea what goes on in his mind.

I was not aware that you are the owner or the editor in charge of the 2nd website he has (IMO dilettantish) printed out with some normaly visible information missing on the copied "screenshots".
Can you tell us readers (and maybe the judge to which Mr. Gabriels is telling so strange things) here openly please, since when you have moved to canada and became the owner of that totally independend canadian site or when you started your new career as independent journalist for a non-Defendant and non-Plaintiff party but third party in a foreign country?

My impression was that you are a lawyer in NY. Not a guy in canada! *Me now ultraconfused by the actions of this Mr. Gabriel*; August 21, 2006 at 6:37:00 PM EDT
raybeckerman said...: You are not confused, alter_fritz.
Mr. Gabriel isn't confused, either; he is just trying to confuse the judge. What I found intriguing was that Mr. Gabriel printed out 58 pages of my blog, and then culled 2 of the 58 pages to show the judge. What was he afraid of in the other 56 pages?; August 21, 2006 at 10:20:00 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