Recording Industry vs The People: RIAA lawyer responds on "royalty statement" issue in UMG v. Lindor

Thursday, April 10, 2008

RIAA lawyer responds on "royalty statement" issue in UMG v. Lindor

In UMG v. Lindor Richard Gabriel has filed a "surreply" letter responding to Ray Beckerman's last letter and exhibits.

April 10, 2008, Letter of Richard L. Gabriel to Hon. Robert M. Levy (8 discovery issues)*
Exhibit A (email string)*

* 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

7 comments:

Alter_Fritz said...: Ray, I'm a bit confused about the significance of it or what Mr. Gabriel wish to archive with this letter to Hon. Levy other then confuse him even more (again).

No offense intended, but since you are a lawyer too you might understand his intentions better then me can see them at this moment.

Is it just the exact wording he now seems to nitpick about or what is this all about?

How about recollecting some prior events here:

At the end of August 2006! Judge Levy ordered the Plaintiffs to produce "all relevant documents" concerning Plaintiffs' wholesale download prices

Both parties "played ball" about this issue until January of 2007 (so viewed from today already again more then 16 month ago) where there was this proposed order with respect to the prices how much the record labels make from the digital retailers. (1)

Mr. Gabriel again objected to this proposed order with hyperbole that you do this all only for your blog or other cases but not for your client Lindor. He used the term "download pricing issue" back then instead of "royalty statement" (2)

This thingy dragged on from there for a few more month playing "games" with each other and writing letters to Judge Levy about photos and other stuff until mid May '07 where the parties finaly reached an agreement that was signed by both of you and were send to Judge Levy with the request to make an order out of it.
The wording there in the caption was "Revenue from lawfull downloads" neither "dowload pricing issue" nor "royalty statement(s)" (3)

Judge Levy ordered that one on May 18th 2007 (4) (so again one would asume from there that everything would work out fast on behalf of the plaintiffs but we are now nearly again 11 month later and that issue is still NOT resolved)

Of course Plaintiffs dragged that thingy on for a few more month, with writing of a few more letters (5) (6) and a few more I don't cite here from both parties where for the first time the word "expenses" came into play while it should as far as I understand resolve around how much money the labels were making from digital sales instead of what they have to pay themself!
Blog commenter personal note; If I were at Judge Levy's position and had issued these already now 2 orders "against" Plaintiffs and would learn that they ignore them so blatantly and redicule the course of justice with their behaviour I would be seriously Rule 11 mooted, but what do I know, Maybe Judge Levy things the games playing from RIAA Richard and the Record labels in his courtroom is O.K.?

But in the end (was it really the end given that it isn't resolved yet anyway?) Judge Levy on November 25th AGAIN ordered something with respect to that issue. (7) This time he even wrote a relatively lenghty order text that was clear to understand one would assume. It wasn't oviously for Plaintiffs and freshly voted "Superlawyer"-Mr. Gabriel. Since he now tries to confuse the Judge with nitpicking about words like "royalty statements"

Man would I be *expletive deleted* if I were the Judge that ordered 3 times something and would recollect the events like I had done here as a blogcommenter simply from looking up some documents without being even directly involved like Judge Levy is.

So Ray, let me come back to my initial question, Whats Mr. "Superlawyer"'s intention?

(1) http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_070102proposedorderwholesaleprice
(2) http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_070103RIAAtoMagisWholesalePriceDownloads
(3) http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_070516LJBtoMagStips1
(4) http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_070518StipulationSoOrderedWholesaleDownloadPrices
(5) http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_071011RIAAtoMagisExpenseDiscoveryMot
(6) http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_071012RBtoMagisandJudgeExpenseDiscovery
(7) http://www.ilrweb.com/viewILRPDF.asp?filename=umg_lindor_071125OrderDirectResponseInterrogExpenses; April 10, 2008 at 3:32:00 PM EDT
Anonymous said...: Hmm...I could be mistaken, but IMO Richard's letter seems to say "I lied and will now compound the lie." But that could just be me...; April 10, 2008 at 4:28:00 PM EDT
raybeckerman said...: I'm not sure what he's saying. He's not denying that he lied.

And the email he pointed to does not support the claim he made as to what I had said.

All I can say is that he has an awful lot of nerve, and that I sincerely hope he's finally used up the incredible length of rope Judge Levy has given him.; April 10, 2008 at 5:16:00 PM EDT
Macros said...: Hi Ray,

Looks like an invalid link wrapped around "last letter and exhibits".

Cheers!; April 10, 2008 at 10:50:00 PM EDT
Anonymous said...: Ray, sorry but it looks like, at least on the surface, he can twist this to mean what he says... You do offer to do this by other means, including looking at the documents.

Of course he has probably left out the preceding e-mail where he asked if you would accept it.. LOL

He has a lot of nerve though...; April 10, 2008 at 11:57:00 PM EDT
Anonymous said...: IANAL, but doesn't ignoring judicial instructions grounds for being held in contempt of court? We've seen the RIAA lawyer troop dancing with rule 11 for a long time now, isn't there enough documented hypocrisy to burn them yet?

ZH; April 11, 2008 at 5:37:00 AM EDT
raybeckerman said...: Thanks, macros. I fixed the link. Sorry about that.; April 11, 2008 at 7:49:00 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