Thoughtful decision in 2007 California case, Elektra v. O'Brien

A reader was kind enough to send along a decision he'd found, in a pro se case, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555 (C.D. California 2007), showing a thoughtful opinion of a judge, Hon. S. James Otero, sitting in the Central District of California, who showed genuine concern over the one-sidedness of RIAA litigation. This decision is well worth reading:

Some quotes from the decision:

This lawsuit is one of thousands of "peer to peer" file-sharing lawsuits which have been filed in the federal courts over the last few years. In most of these cases, as in this one, the plaintiffs are represented by counsel and the defendants are not..............In other lawsuits, the same Plaintiffs are currently litigating legal issues which, if determined adversely to the Plaintiffs and applied to this lawsuit, would result in this lawsuit being terminated or the damages being capped at a very low amount. In the Southern District of New York, in the case Elektra Entertainment v. Denise Barker, Judge Karas is considering a motion to dismiss on the basis that the pleadings in these file-sharing cases do not sufficiently allege copyright infringement. Elektra Entm't Group, Inc., etal. v. Denise Barker, No.05-7340 (S.D.N.Y. Jan. 26,2007) (minutes stating argument held and decision reserved). In the Eastern District of New York, in the case UMG Recordings v. Marie Lindor, a case which involves two of the five Plaintiffs in the present case, Judge Trager allowed an amended answer to be filed which states the affirmative defense that the statutory damages sought substantially exceed the 10:l ratio of awarded damages to actual damages permitted by the Supreme Court in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 US. 408,425 (2003). UMG Recordings, Inc., etal. v. Marie Lindor, No. 05-1095 (E.D.N.Y. Nov. 9,2006) (order granting motion to file second amended answer).......In the Western District of Oklahoma, in the case Capitol Records, Inc, v, Debbie Foster, a case which involved four of the five Plaintiffs in the present case, Judge West awarded attorney fees to the defendant, after the plaintiffs continued to litigate even after it was shown that it had been another user of the defendant's Internet access account who had engaged in the filesharing. Capitol Records, Inc., et al. v. Debbie Foster, etal., No. 04-1 569 (W.D. Okla. Feb. 6,2007) (order granting attorney fees). Certainly, there are even more legal arguments being raised against the plaintiffs in these file-sharing cases. 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.

In this case, the First Amended Complaint names Defendants Catherin O'Brien and Michael Tubman, whereas the original Complaint merely named Defendant O'Brien. The declaration of Jonathan G. Fetterly filed on February 20,2006 alleges that the multiple parties in this case are properly joined but says nothing specific to the facts of this case. There are no factually specific allegations that the defendants are in any way related to each other, acted in concert, or acted as a group in the offending actions. The Western District of Texas, encountering the problem that plaintiffs in file-sharing suits were naming unrelated parties in order to economize on filing fees, ordered that all but the first named defendant be dismissed from the file-sharing cases. Fonovisa v. Does 1-41, No. 04-550 (W.D. Tex. Nov. 17,2004).

The Plaintiffs are ordered to show cause in writing no later than March 21,2007 as to why Defendant Michael Tubman should not be dismissed from this action. The First Amended Complaint names Defendant Michael Tubman without dismissing the case against Defendant Catherin O'Brien. It is possible that the Plaintiffs are engaging in the same tactics as they did in the Oklahoma case mentioned above. The Plaintiffs are ordered to show cause in writing no later than March 21,2007 as to why Defendant Catherin O'Brien should not be dismissed from this action.

It is so ordered. (emphasis supplied)

March 2, 2007, Decision and Order to Show Cause, ordering RIAA plaintiffs to show cause why case should not be dismissed as to defendant*

* Document published online at Internet Law & Regulation

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