Saturday, December 01, 2007

RIAA Submits its Response to Order to Show Cause in George Washington University case, Arista v. Does 1-19

in Arista v. Does 1-19, the case targeting George Washington University students, the RIAA has filed its papers responding to the Judge's Order to Show Cause why the ex parte discovery order should not be vacated.

RIAA response to order to show cause*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs


Anonymous said...

I see here they RIAA plays the number game, citing all the cases where their UNOPPPOSED motions snuck past the judge's notice of the actual law involved. The RIAA clearly thinks that the DMCA doesn't at all apply to them.

The RIAA claims that the Catch-22 situation means that they must be entitled to this expedited discovery. They completely pretend the other possibility - that the law has not caught up to this area and they are simply SOL - cannot possibly exist. In short, they require activist judges to extend the RIAA's authority into an area where it simply doesn't exist yet.

The RIAA sure loves overblown rhetoric, e.g. "Massive Copyright Infringment". Here they can't even prove that a single copy of a single work was every copied by another person, but hey, this is "Massive Copyright Infringment"!

The RIAA is insisting that every file in question here was "Distributed" even though:

1: No evidence of a single copy ever made by another person.

2: No evidence that any file in Exhibit B is a copyrighted sound recording owned by the Plaintiffs.

How can judges fall for this stuff?

If the RIAA doesn't rely on either the Cable Act, or the DMCA, how can they pierce FERPA when they haven't even made a prima facia case yet? The RIAA should have no leg to stand on here.


Alter_Fritz said...

and I thought Mr. "I'm not with the RIAA"Oppenheim would come up with some more supstantial stuff instead of wasting 12 pages full of filler and as answer "why not get rid of it?" from the judge essential only says this;
Hundreds of courts in similar cases across the country have agreed that Rules 26 and 45 are the proper bases for such discovery and have, therefore, granted nearly identical motions permitting subpoenas to be issued in more than 300 cases that are virtually identical to this one.

Plaintiffs agree that the Cable Act does not apply to the subpoena issued to the University in this case (and Plaintiffs have never suggested otherwise). It does not follow, however, that the subpoena should be quashed, as Defendant argues. Neither statute is applicable to this case or to Plaintiffs’ Application. Indeed, in the hundreds of similar cases in which these and similarly-situated plaintiffs have sought nearly identical subpoenas, only one court, in Interscope Records, et al. v. Does 1-7, 494 F. Supp. 2d 388 (E.D. Va. 2007), has ever denied the plaintiffs’ requested discovery.

In response to the Court’s Order to Show Cause as to why all other Doe Defendants are not similarly situation such that a Motion to Quash ruling would not apply to all Does, Plaintiffs respectfully submit that, because none of the other Defendants in this case have raised objections to the subpoena or moved to quash, should the Court grant Defendant’s Motion to Quash, it should do so only with respect to Defendant Doe #3 and enter an order allowing the University to provide responsive information for those Defendants who did not objected to the subpoena. Plaintiffs recognize, however, that, should the Court grant Defendant’s motion and vacate the discovery order or dismiss the complaint, the order would apply to Plaintiffs’ claims against each of the Doe defendants.

Thus, in a similar case involving these and similarly-situated plaintiffs, this Court found that the plaintiffs had satisfied the good cause standard because the information that they sought was “not only relevant but crucial to the prosecution of plaintiffs’ claims.”

Hundreds of courts across the country have allowed Plaintiffs and/or other record companies to issue subpoenas identical to the one that Plaintiffs have requested in this case.

Now thats what I call lame arguments. If I had been the issuing judge I would tell Mr. O. " you fail" to show cause!

"Because all the others (here: courts) do it too"- isn't such a good argument on the plaintiffs side.

Using this kind of justification ( which reminds me of little kids arguments that were caught doing something bad) the otherway round would mean that defendants could argue that not hundrets of courts but millions of other americans are doing filesharing and those are not prosecuted so should the plaintiffs be required to follow those examples of those others and should not be allowed to persue their infringement case against us.

This 180degree turn araound argument just shows how redicoules Plaintiffs answer to the order to show cause is!

derivative said...

1) I like how "improper joinder" only appears in this document one time, and then is never addressed again. Of course, if they addressed it again, they might have to admit that (oops) more than just the one court in Virginia realized they were full of it.

2) I think we know for sure now where Matt Oppenheim is.

derivative said...

One question about one of the cases the RIAA studiously ignored here, Fonovision v. Does 1-41.

In that case, the "Plaintiffs are ordered to file any future cases of this nature one defendant at a time, and may not join defendants for their convenience." This order was signed by, not one, but two, federal judges, and referred to 4 separate cases (with 254 defendants total) so presumably, plaintiffs included labels of all the big 4.

If another judge in a different district were to get appropriately mad at the RIAA for continuing to pull the same shenanigans, could that judge cite them for contempt of the previous order?

Anonymous said...

I notice that another aspect that the RIAA has failed to mention about the "Hundreds of cases", specifically there is NO intent to actually prosecute any of these cases. I bet that nearly 100% of these fishing cases have been voluntarily dismissed after they get the names. To the best of my knowledge, they have never amended the John Doe complaint to add real names, nor have ever actually served any defendants.

I seem to remember that at least 1 judge told them they had to supply many full copies of the case to the person being subpoenaed so that they could give full advance notice to each defendant before they would be permitted to receive any names. I dont see any discussion about that case here, what ever happened to that case??

Another element missing is the justification of the "Emenrgency" nature of the motion. Truly, what should occur is that George Washington University should be notified to preserve evidence. Once this is done, if they are permitted any discovery at all the pace should be at speed=normal.

Looking at the show cause order the Judge says: "Plaintiffs’ Motion for Leave did not cite to particular statutory authority"

Looks to me that the Judge wanted them to state the exact LAW that would allow them to obtain this information. Instead in their response they cite Court Rules 26 and 45. However, my understanding is that these are discovery rules that are used after the defendants are SERVED. Im not sure of the federal rules, but I do know the similar State rules in my state provide that any such discovery response cannot be required until after 45 days after the service of the lawsuit. If the federal rules are similar, I think they have a problem.

Sounds like the Judge was giving them a clue and telling them that unless you can come up with a statute basis for your request, you are out of luck. And as further info, she told them that it did not look like the cable act applies, and the courts have already ruled the DMCA does not apply.....

Of course all of this assumes that they can produce evidence that at least 1 song was downloaded by at least 1 other person who was NOT an agent of the record companies. Just because it was there is NOT proof that anyone else ever grabbed as much as a single song.

I also seem to remember the actual statute made reference to Copies or Phonorecords. The law which was written before the invention of the CD, seems to limit itself to actual physical copies like records. Wonder if the court would find a CD to be even covered, since it was not in use back then? Even if the court stretched the terms to cover a physical item such as a CD, a download is clearly NOT a physical item under that law.....


Anonymous said...

Albert, you've not been paying attention.

Of course all of this assumes that they can produce evidence that at least 1 song was downloaded by at least 1 other person who was NOT an agent of the record companies. Just because it was there is NOT proof that anyone else ever grabbed as much as a single song.

The latest RIAA tactic has been to claim that the songs were all "distributed" at the instant that their "investigator" SafeNet captured a screen shot of them in a publicly accessible file directory.

How this claim can justify the contention of "continuous and ongoing" I'm not sure, unless they bring in an entire succession of screen shots each taken an instant after the previous one.


Anonymous said...

Quote from ZDZ:

The latest RIAA tactic has been to claim that the songs were all "distributed" at the instant that their "investigator" SafeNet captured a screen shot of them in a publicly accessible file directory.

How this claim can justify the contention of "continuous and ongoing" I'm not sure, unless they bring in an entire succession of screen shots each taken an instant after the previous one.

An exact moment in time is stated in their complaint, NOT more than one though.

If I was working on the side of the RIAA, I would think I would want to stay with that IP as long as possible, and if it vanished to scan the same subnet and see if I could pick up the same person for as long as possible. Only with that kind of evidence can "making available" and "Ongoing" be truely stated.

Another weak point is that they have never asked for the upstream bandwidth in their subpoena, and/or if the ISP has records of exactly how much upstream bandwidth was used during the exact time period that "sharing" took place.

Of course I can guess the true reason is that figures like this would act to limit the amount of damages they could collect. Right now they would say "Defendant shared 50 songs" and ask for 50 X damage per song.

However, if they were forced to state an amount of time sharing happened, and they knew the upstream bandwidth, even if they assume all the downloads were of the smallest song file stated, pure math would limit the maximum amount of songs that could be transfered in that time, maybe as few as one.

In the case of Ms Thomas, since NO evidence as far as I can tell established the amount of time as anything other than 1 sec (Single moment of time), unless she had multi-terra-bit upstream, there was not enough time to even transfer 1 song.

Of course we know it had to be more than a second, since their agent downloaded some songs. However, if the download time was about the same for each song, that would make it appear to me that noone else downloaded any music during that time, since 1 additional downloader would have cut the download speed in half, as the available bandwidth would have been divided equally between the 2 downloaders.

Wonder why the defense has not considered examining this point, or is it the fact that defendants are too poor to hire their own experts to attack the evidence.

Of course the other weak point they also ignore is most internet connections and computers are shared. How did they establish the account holder was in control at that moment or installed the software?

If there are 4 users of that computer, the straight odds that the account holder was in control are 1 in 4, less than the 51% standard that I thought was used in civil court.

Also, how can the evidence support how much each Plaintiff gets? It might be possible all the downloads in a given case were of only 1 or 2 songs from the list. In all cases, the damages should be limited to ONLY the songs that were actually shown to be downloaded by others, and those record companies who cannot show a download (other than their agent) should collect nothing.....