Recording Industry vs The People: More discovery issues in UMG v. Lindor, with strong differences between the facts as presented by Messrs. Gabriel and Beckerman

Wednesday, April 09, 2008

More discovery issues in UMG v. Lindor, with strong differences between the facts as presented by Messrs. Gabriel and Beckerman

In UMG v. Lindor, during the telephone conference conducted on April 3rd concerning MediaSentry's refusal to respond to its subpoena duces tecum, it was determined that defendant's lawyer would write a letter listing other unrelated discovery issues that had arisen.

Following are the letter he sent, Mr. Gabriel's response, and defendant's reply.

[Ed. note. The astute reader might notice a slight factual discrepancy or two between Mr. Gabriel's "recollection" of events, and the emails that he actually sent and received.]

April 7, 2008, Letter of Ray Beckerman to Hon. Robert M. Levy (8 discovery issues)*
April 9, 2008, Letter of Richard L. Gabriel (8 discovery issues)*
Exhibit A (email string)*
April 9, 2008, Letter of Ray Beckerman to Hon. Robert M. Levy (8 discovery issues)*
Exhibit A (4 email strings)*

* Document published online at Internet Law & Regulation

(Contributions are tax deductible)

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

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5 comments:

Anonymous said...: From Richard Gabriel:

(undersigned counsel was unaware that the production was 6,000 pages when he said that he would produce hard copies.)

So this somehow unilaterally excuses you from carrying out your side of the agreed bargain? How is that?

XK-E; April 9, 2008 at 7:25:00 PM EDT
Anonymous said...: Amazing!

For those who haven't read the documents, Ray agreed to an "attorney's eyes only" confidentiality stipulation to view info on how much money the record companies make per download. That means Ray, being an honest attorney, would be in deep stuff if the info got away from him, or, more likely, if that same info was leaked by Machiavellian industry insiders and the leak falsely attributed to Ray. So, when Richard asked Ray what format he wanted, Ray said hard copy, to make the information more secure. So, what did RIAA Richard do? He sent him a CD! Accident? Hmmm...you decide.

Richard says he gave Ray the wrong format as a favor to Ray, to save him the high costs the RIAA would charge for hardcopies. In the meantime Ray has left the CD sealed and asked Richard to provide what said he would provide (though, keep in mind, the discovery Richard provided in the wrong format is still not complete in anyway since it is just from Sony BMG.)

In his letter to the Judge, RIAA Richard says the only reason he offered to send Ray hard copies of the Royalty statements in the first place was because he didn't know how many pages were involved or he wouldn't have offered, which oddly, contrasts with his email characterization:

"From: Richard Gabriel ...
I have the documents on a disk. They are voluminous. In what form would you like me to send them to you?"[emphasis added]

RIAA Richard also falsely claimed that Ray asked specifically for the royalty statements (as opposed to other types of documents or a stipulation) in lieu of taking depos! And that poor, poor RIAA spent time and money preparing the documents, and thus shouldn't have to offer anyone up for depo. (What legal theory is that?) Again, Richard is contradicted by his own emails which show that providing "royalty statements" was Richard's idea and that Ray never offered to forgo depos!

Me thinks Richard is working to many cases and can't keep his lies straight.; April 9, 2008 at 7:47:00 PM EDT
Jadeic said...: Don't you just love those audit trails ...

Slightly off topic - I turn my back on RI v TP for 24 hours and all hell breaks loose! Quite a flurry of posts for one day there Ray and much to read.

We perhaps need to add a few more cases to the 'Watch List' - I wouldn't like to miss any developments.

Dave; April 9, 2008 at 8:59:00 PM EDT
Anonymous said...: "We perhaps need to add a few more cases to the 'Watch List' - I wouldn't like to miss any developments."

Yes, it is quite the soap opera. Except with people's lives at stake and real villains who care not a whit about the law, guilt or innocence, only their own agenda.; April 9, 2008 at 9:11:00 PM EDT
raybeckerman said...: OK Dave, you've got your wish, I added the Carnegie Mellon case -- where the pro se litigant got the cases severed for misjoinder -- to the RIAA case watch list. (Fonovisa v. Does 1-9).

2 important issues there:

1. the misjoinder;

2. the "related case" issue.; April 9, 2008 at 9:13:00 PM 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