Recording Industry vs The People: Ms. Lindor seeks more time to conduct hard drive depositions; RIAA says no, unless it can have extension too

Tuesday, November 28, 2006

Ms. Lindor seeks more time to conduct hard drive depositions; RIAA says no, unless it can have extension too

In UMG v. Lindor, Ms. Lindor has asked for an extension of time in which to conduct the interrogatories and depositions of plaintiffs' hard drive experts, due to the RIAA's delay in producing the hard drive report:

November 28, 2006, Letter of Ray Beckerman (Hard Drive Deposition Deadline)*
Attachment (Copy of August 3, 2006, Order)*

The RIAA opposed it unless they too could have an extension of the discovery cutoff to enable them to subpoena the computers of Ms. Lindor's son and nephew.

November 28, 2006, Letter of Richard L. Gabriel Requesting Mutual Extension of Discovery Cutoff*

Ms. Lindor opposed the RIAA's request for an extension of its own discovery cutoff:

November 28, 2006, Letter of Ray Beckerman Responding to RIAA Request*

* Document published 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

6 comments:

Alter_Fritz said...: http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_061128RBtoMagisHardDriveDeposDeadlineExA060803order

thats the right one I guess :-); November 28, 2006 at 8:12:00 PM EST
raybeckerman said...: Thanks, alter, I fixed the broken link. Sorry about that.; November 28, 2006 at 8:33:00 PM EST
Alter_Fritz said...: to sum up Richies letter:

The plaintiffs are morons with regards to technology if they believe that a harddrive is attached to an internet account! So that claim in his letter is BS.

Harddrives are attached to computers.

plaintiffs are suffering of multiple personality disorder if they believe that two (2) persons (here: Gustav and Woody) can have one (1) harddrive at the same time.

As I was speculating earlier; Maybe Mr President Bush has the "hard drive that was attached to defendant's Internet account."
Hey RIAA-Richard make sure to choose next time a process server that knows the differences between apartment, private house and oval office.
I assume your clients know the address!; November 28, 2006 at 8:55:00 PM EST
jaded said...: In Gabriel's letter, he states that the court was now aware that 'plaintiffs believe that defendant produced a hard drive different from the hard drive that was attached to her Internet account at the time plaintiffs detected the infringement at issue.' The letter goes on to indicate that they suspected this in early Oct and started pursuing Mrs. Lindor's son and nephew at that time.

Several questions:

Back when you were having your e-mail debate with Gabriel regarding their expert's analysis of the hard drive, did they provide any indication that they knew that there would be none because they suspected that it was not the original drive? If not, then this is simply more RIAA jerking around (and, unfortunately, provides additional ammunition for those that think lawyers sometimes are less than honorable).

Why do the plaintiffs only 'believe' that the drive is not the original? Is there something material that they've found that would indicate such (e.g., the date of some of the OS folders is after the data of the alleged infringement) or is it simply the fact that there might not be a copy of Kazaa on it and no evidence of it ever having been installed? How did they come to this conclusion if they have not actually 'inspected' the drive?

If the drive provided by Mrs. Lindor is NOT the drive that was in the computer connected to the internet (hard drives are OBVIOUSLY NOT connected to the internet!) on that fateful day many moons ago, would that not be grounds for comtempt? If they had proof of such, would they not immediately so advise the court so that appropriate action could be taken?

I would think that the plaintiffs would HAVE to have provided some sort of evidence to the court regarding their suspicions in order to obtain a subpoena for her son. Is this information available since it didn't show up in the subpoena? Or, is the bar so low that all they have to do is say that they suspect such and request a subpoena trying to get more information? If so, where does it end? [Let's say that Mrs. Lindor's son does provide some drives and an MP3 player and the RIAA can't find anything of note. Can they then subpoena all of his financial records to find out what drives/MP3 players he may have purchased and then ask him to account for each and every one?]

Enquiring minds really would like to know what evidence the plaintiffs have provided that leads to the belief that the drive that they have is an imposter.; November 29, 2006 at 12:21:00 AM EST
raybeckerman said...: Dear jaded,

They have no evidence.

And they lack the integrity to admit they have no evidence.

RIAA Richard, who is the supervisor of all the cases nationwide, seems to be spending an awful lot of time on UMG v. Lindor.

All to nail a middle aged woman who works as a home health aide and who has never even used a computer.

Strange. Very strange. I think Mr. Richard has lost his way.

Ray; November 29, 2006 at 12:42:00 AM EST
Alter_Fritz said...: Ray,
as you pointed out to the judge it's now 109 days (and counting) since the plaintiffs got their requested mirrorimage .
Judge Levy ordered that the inspection shall be done within a timeframe of 30 days in his August ruling.
Plaintiffs admitted that they have made the inspection already but that "they do not believe that it would make sense for them to serve [this report(s)]. (Gabriel's admitting of this fact in Nov. 28 letter, page 1 last paragraph)

Hello! Anybody at home in the plaintiffs and their lawyers offices? What do they think they are doing here?!

The judge didn't rule: "make your inspection, and if you don't like the results of your own expert(s), or if you think the results make no sense in your favour then forget my ruling and keep the results for your eyes only, not for the court nor the defendant and keep on in wasting my valuable courttime with your fishing for all the harddrives in the world."

I can't believe that RIAA-Richard and the plaintiffs can give the finger to the judge a la: "screw you judge, we are THE RIAA, and if we don't like our own experts report so we don't give it to you tiny judge, We are RIAA, we decide what to do, not you judge in this case!"

Of course Mr. Gabriel did not used exactly these words but the meaning result of his letter is the same.

So tell me, can they do it? Can they Really get away with this kind of attitude towards the US justice system?
Can't the Judge order them to hand over the results of the more then 100 days inspection time and then imprison some Label CEO's and their lawyers if the refuse to hand over the report?

If citizen journalist/bloggers * can go to jail for refusing to hand over some raw video footage why not the RIAAguys for refusing to hand over raw expert report data? Same justice for all or what?

* http://joshwolf.net/; November 29, 2006 at 8:04:00 AM EST

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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