Recording Industry vs The People: RIAA now sues Mr. Amurao's daughter

Saturday, April 19, 2008

RIAA now sues Mr. Amurao's daughter

After discontinuing Lava v. Amurao with prejudice, the RIAA has commenced a new action, this time suing Mr. Amurao's daughter.

We will call the new action "Lava v. Amurao II".

Summons and Complaint*
Exhibit A

[Ed. note. Note that the exhibit A list is about 6 times longer than the usual exhibit A list. That's the RIAA's way of exacting revenge against the father for having dared to fight back. Not very nice "people" we're dealing with, are they? Wonder if they actually have those song files. If so, when did they get them? Hmmm. -R.B.]

* 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

8 comments:

Anonymous said...: Are they able to take "evidence" they developed in the now dismissed case and use it in her case, or do they have to start all over again?

Of course the RIAA always tries to make things look the worst they can possibly be, but wasn't Appendix A songs actually downloaded and identified by "experts" as the actual copyrighted performance? Did they download 6 times more songs recently, or were these songs they just didn't mention downloading and identifying earlier since that would have looked excessive and they only wanted to claim a few actual infringements originally just to be nice?

Also, who is the EXACT "expert" who has identified these files as truly infringing, and why hasn't s/he been deposed yet as to his/her qualifications, methods, error rates, and all the rest?

-DM; April 19, 2008 at 1:48:00 PM EDT
Jadeic said...: Paragraph 22 "The Defendant has stated in sworn testimony..." - did I miss something here? I can't see any record that Audrey was deposed in Amurao I.

Dave; April 20, 2008 at 6:49:00 AM EDT
Anonymous said...: I couldn't find the exhibit "A" list in the first case. Just wondering, is exhibit "A" in the second case longer than it was in the first case against the parents??

Albert; April 20, 2008 at 2:44:00 PM EDT
Jadeic said...: A comparison of Exhibits 'A' from the Amurao I & Amurao II cases shows that the first nine entries in Amurao II Exhibit A have been lifted straight from Amurao I Exhibit A. The additional 45 entries appear to be drawn from the User Log filed as Exhibit B in Amurao II. Unlike the majority of cases I have seen the RIAA did not file these additional entries as a separate exhibit in Amurao I. As usual the order of entries in Amurao II Exhibit A seems random. It certainly is not a cut and paste from Amurao I Exhibit B. Interestingly both the font and formatting change at entry 10 in Amurao II Exhibit A. The font is not that of Amurao I Exhibit B which suggests that it has been pasted from some other unidentified document: possibly a list of tracks actually downloaded by MediaSentry and 'verified' as potentially infringing the plaintiffs' copyright: which leads us back to the points raised by -DM.

Dave; April 21, 2008 at 6:31:00 AM EDT
raybeckerman said...: As I said, this is only revenge for Mr. Amurao's fighting back in Amurao I.

They always have a short list, exhibit A, and a long list, exhibit B. They only sue on exhibit A unless you fight back.

Then, as revenge for fighting back, they try to add some of the exhibit B songs to exhibit A, even though they don't have the song files.; April 21, 2008 at 9:51:00 AM EDT
Jadeic said...: If we believe that they do not have the song files then how can they demonstrate that someone using IP address 162.83.166.67 on 2005-06-01 at 23:57:27 infringed the copyright of the Lava Records LLC registered track Requiem (The Fifth) by Trans-Siberian Orchestra when there is no track of that name listed on the log presented as Exhibit B in Amurao I? Admittedly the log does include the similarly named Trans siberian orchestra - Beethoven's 5th.mp3 (2,862,731 bytes) but without the actual track downloaded by MediaSentry (together with all the associated verifiable audit logs to show that it has not been tampered with) it becomes a leap of faith that the two are the same and that copyright infringement took place. This is only one example of several such anomalies between the two lists. Before long we will arrive at the RIAA apologising for not making the downloaded songs available but instead offering 'one's they prepared earlier'.

Dave; April 21, 2008 at 11:07:00 AM EDT
Anonymous said...: RIAA = "Ruthlessly Intent Against Amurao"

Regards,
Art; April 21, 2008 at 11:34:00 AM EDT
Anonymous said...: I wonder if the "identified an individual" claim works here, when they've already misidentified the father as the infringer.

Q; April 22, 2008 at 8:48:00 PM EDT

Post a Comment

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