Wednesday, June 20, 2007

RIAA Ex Parte Discovery Application Against University of New Mexico Denied!!!

The RIAA's ex parte motion to compel the University of New Mexico to disclose the identities of its students has been denied, in the District Court of New Mexico, by Magistrate Judge Lorenzo F. Garcia, in Capitol v. Does 1-16.

The Judge ruled that there was no reason for the motion to be ex parte, reasoning as follows:

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.

As the Plaintiffs do not presently know the identity of the Defendants, there is no reasonable way to ensure that those prospective Defendants are given notice or even an opportunity to respond in opposition to the request for disclosure. Rather, Plaintiffs seek to obtain information directly from the University of New Mexico. Plaintiffs propose that the University will be able to notify subscribers that a subpoena was served. However, the Court needs to ensure that subscribers actually receive notification and are given a reasonable opportunity to intervene in order to stop the disclosure of sensitive information.

In any event, the Court[...] sees no need to act on an ex parte application. Rather, it would appear appropriate that Plaintiffs and the University of New Mexico confer on an appropriate process to ensure that, if a subpoena is served, the University not turn over information until it has given notice to individual subscribers that a subpoena has been issued and allow those subscribers to intervene in this proceeding to protect disclosure of sensitive information. Moreover, ex parte proceedings should be the exception, not the rule. Accordingly, the Court declines to grant Plaintiffs’ request for ex parte application.

Further, the federal rules prohibit discovery until the parties have met and conferred, formulated an appropriate discovery plan, and made arrangements for disclosure of information. Fed. R. Civ. P. 26. Here, of course, the individual subscribers are unknown, have not been sued and cannot “meet and confer” with Plaintiffs. However, the University of New Mexico, the entity from which discovery is sought, has a right to be heard on this matter.

Accordingly, the Court directs Plaintiffs to contact University counsel, apprise the University that it is seeking discovery from the University, and attempt to agree on a fair and reasonable process that would allow Plaintiffs to identify limited information about the subscribers. If Plaintiffs and the University can agree on a process that includes prior notification to subscribers and a reasonable period of time to intervene or object, a proposed consent order should be submitted. If Plaintiffs and the University cannot agree, the Court will conduct a status conference with Plaintiffs’ counsel and University counsel on the appropriate manner to initiate discovery and provide notice to affected individuals. Once Plaintiffs’ counsel confers with the University of New Mexico legal division, Plaintiffs’ counsel is to notify the Court concerning the status of their agreements, if any.

IT IS THEREFORE ORDERED that Plaintiffs’ Ex Parte Application for Leave to Take Immediate Discovery [Doc. 4] is DENIED.

May 24, 2007, Order, Denying Ex Parte Discovery Motion*

* Document published online at Internet Law & Regulation

Commentary & discussion:
Ars Technica
Geek News Central
Michael Geist
Heise Online (German)
Chronicle of Higher Education (Wired Campus)
Gulli (German)
New Mexico Daily Lobo
Punto Informatico (Italian)
Slashdot (Story on multiple cases)

Slashdot   Slashdot It!


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


Megan said...


Judge Garcia gets two thumbs up from this household. It's about time someone recognized that ex parte proceedings really aren't appropriate in these cases.

DreadWingKnight said...

Now this document is a VERY nice find, and can probably be referenced in other similar cases.

I do hope that this order does get referenced in the other recent cases attempting to intervene at this level.

Alter_Fritz said...

Funny, I was about starting this post with asking Ray what "Coleridgian “suspension of disbelief”" could mean, but the judge was so nice to explain it himself in a footnote;
This phrase, introduced by Samuel Coleridge in Ch. XIV of Biographia Literaria, describes a
voluntary withholding of skepticism on the part of a reader with regard to incredible events. John A. Cuddon,
A Dictionary of Literary Terms and Literary Theory, 1044 (3d ed. 1991).

So all that is now left for me is to say thank you to Judge Garcia for refreshing my believe that you Americans still have Judges over there that do rule reasonable and impartial.

AMD FanBoi said...


Unknown said...

I'd offer to buy this judge a drink, but that would violate my personal rule on rewarding nothing more than common sense. Nevertheless... w00t! It's about time a judge made a reasonable ruling.

Alter_Fritz said...

the book mentioned:
("Not copyrighted in the United States. If you live elsewhere check the laws of your country before downloading this ebook")

raybeckerman said...

This is indeed an important ruling, and it is an example of a judge applying true American values.

Now I'm going to to vote for Magistrate Judge Lorenzo F. Garcia.

AMD FanBoi said...

Now that defendants can get heard at the Doe stage, maybe they can attack the joinder here at the point it should be attacked. If I were in one of these suits, I would be arguing for severance on the basis that there is no relationship between Doe defendants justifying such joinder, and judicial economy is no excuse to deny a defendant fully rights to be heard as completely separate from all other vaguely similar cases. Unless I was unlucky enough to be Doe #1, they'd then have to refile separately against me, and everyone else.

Then you can attack the paucity of their evidence to date, and argue it does not rise to the level sufficient to violate one's right to privacy, plus any additional protections one has as a student these days.

Btw, Ray, having to have to retype in the captcha for this blog so often, even just to preview my post, is a real pain. It seems I must enter it at least twice to get any post submitted at all. It it really under this much of an attack at this time?

Igor said...

This is excellent news indeed! I hope it doesn't go the way of the Texas severance ruling...

I too have noticed that I have to type the captcha twice...but I think it's because the first times out by the time I read the comments.

A bit off topic but I want to throw it out there before I forget...some coworkers and I were talking about the "not me" defense (someone else was stealing the internet connection or something like that)...we were thinking that such a defense may actually be strengthened by the fact that Media Sentry probably has terabytes of packet logs. Presumably if this was malicious internet stealing (or even unintentional by neighbors) they are very likely to have also stolen or connected from another access point/router and also very likely that the RIAA logged some of their packets from another router/IP address (and the RIAA may not even know it). Thus, by writing a script to go through all their packet logs, one can possibly find a) different IP for same username (that's allegedly in the kazaa/p2p network's packet header).
b) different IP address for the same MAC address
c) same IP address for different MAC addresses
d) etc...
This makes ALL of their packet logs relevant as they may contain exculpatory evidence....That supports the defense claims that IP addresses aren't permanent or unique (dynamic). It supports the claim that someone may have stolen Internet if a. is true. It also provides an extensive dataset to use to test various other theories in relation to using various techniques RIAA uses to identify alleged pirates...

I know go off on these tangents sometimes, but I feel like it's important enough to say for some defendant to actually use (perhaps one of your clients :) ).