Recording Industry vs The People: John Doe #3 moves to quash University of Arizona subpoena; University responds to subpoena anyway

Sunday, April 20, 2008

John Doe #3 moves to quash University of Arizona subpoena; University responds to subpoena anyway

It appears that the subpoena response of the University of Arizona in LaFace v. Does 1-14 (Phoenix, AZ) was turned over one day after John Doe #3 had filed a motion to quash the subpoena, and on the same day that John Doe #8 joined in John Doe #3's motion.

We have no idea how this happened, but it would seem that (a) the University of Arizona should not have responded to the subpoena when a motion to quash the subpoena had been filed, and (b) the motions to quash aren't going to be of much use to John Does #3 and #8, since their identities have already been disclosed.

Hopefully we'll be able to fill in more blanks on this mystery, after we hear from the attorneys in Arizona.

Motion to quash by John Doe #3*
John Doe #8's Joining in motion to quash by John Doe #3*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet 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 intellectual property

11 comments:

Anonymous said...: Ray, so what can be done about this? Can the university be held liable?; April 20, 2008 at 9:14:00 PM EDT
Justin Olbrantz (Quantam) said...: I wouldn't recommend trying, given that the university has essentially killed the suits by their technical notes about the possible inaccuracy of the identifications.

Although it would be terribly amusing if the RIAA somehow had a hand in this confusion (which would very likely be illegal activity).; April 20, 2008 at 9:57:00 PM EDT
John said...: bbsux: Also, what if they didn't know there was a motion pending?; April 20, 2008 at 11:29:00 PM EDT
raybeckerman said...: I can't comment on what happened here until I get more information.

It seems very strange to me.

Why would the university, which was so careful about the wording of its response, be so careless about turning it over when there's a motion to quash pending?

Just doesn't compute.; April 21, 2008 at 1:39:00 AM EDT
Anonymous said...: Ray,

I've been a long time visitor of slashdot, and have always appreciated your clear and concise explanations of IP/Copyright law. I tried to find a way to send you a message on there after reading your post on the recent law that was declared partially unconstitutional, but couldn't figure out how to. Anyways, Thanks! Keep up the site and the good work!

Chris; April 21, 2008 at 2:54:00 AM EDT
Anonymous said...: Ray,

Note that the University of Arizona is located in Tucson, AZ.

Arizona State University is located in Phoenix, AZ.

You've got either the location, or the university, wrong.

XK-E; April 21, 2008 at 11:37:00 AM EDT
raybeckerman said...: Anonymous XK-E, if you'd read the papers carefully you'd know that I have the location right, and it's the RIAA that got the location wrong.; April 21, 2008 at 11:41:00 AM EDT
Anonymous said...: Ray,

I live in Arizona, and I know the difference between the UofA and ASU - and where each of them are located.

Looking at the UofA subpoena response you'll notice that the notary stamp is for Pima County. Tucson is located in Pima county.

Phoenix is located in Maricopa county.

XK-E; April 21, 2008 at 1:18:00 PM EDT
raybeckerman said...: Anonymous XKE, would you please read page 3 of the motion to quash before commenting further.; April 21, 2008 at 1:23:00 PM EDT
Anonymous said...: I'm a different anon, but I'd just like to clarify. The RIAA filed this in Phoenix, when it should've been filed in Tucson.

However, the anon was correct in saying that ASU is in Phoenix and U of A is in Tucson.

So that's what the problem is. The case is in Phoenix (though misfiled) and the university is in Tucson. I should know. I'm an ASU alumnus.

I realize that Ray said this already, but I actually had to read the PDF before I understood what that meant. It sounded like Ray was arguing that the universities were in different places than they actually are somehow, and I know he didn't intend anything of the sort.; April 22, 2008 at 3:56:00 AM EDT
raybeckerman said...: I said the case was brought in Phoenix, not that it was properly brought in Phoenix.; April 22, 2008 at 10:02:00 AM 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