Wednesday, June 18, 2008

RIAA wants to 'throw in the towel' in UMG v. Lindor

In UMG v. Lindor, the 3-year-old Brooklyn case against a home health aide who has never used a computer, the RIAA is now making a motion to voluntarily dismiss the case without prejudice.

Additionally, the motion will seek:

-discovery sanctions against Ms. Lindor;
-discovery sanctions against Ray Beckerman, her attorney; and
-a stay of all proceedings.

June 17, 2008, Letter of Eve G. Burton to Hon. Robert M. Levy

Commentary & discussion:
Ars Technica
Brooklyn Law School Library Blog (Polish) (General discussion of 'throwing in the towel' cases)

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

To contribute to Marie Lindor's legal defense, see below.

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.


Anonymous said...

How can they write this with a straight face?

Alter_Fritz said...

Earth to RIAA, earth to RIAA, come in please!

hey guys, when e said in the cassin case "its Mr. B. fault...
...that was a JOKE!"

you can't make that up, the label scapegoat guys are SOOO stupid"

Alter_Fritz said...

ey eve would you please reread your own stuff?

you claim that there is prove that no wireless was in use! you say you base that on the information that was found on the harddrive you have for inspection! and that this allegation by you means that lindor lied.

If Judge levy is about to believe THAT:

How do you expect him to believe your further down argument that this exact same HDD is NOT the hdd that was the relevant one since there are no traces of copyrighinfringement on it but it must be some other one that allegedly got destroyed only a few weeks ago (what rediculous argument is that!)?

This just is logical impossible (ask Mr Kao, I'm sure he is much smarter than you and can explain it to you too)
If this is NOT the HDD that was used back in the relevant timeframe, then is the fact that THIS HDD shows no wi-fi irrelvant for the argument that wifi was used!

You RIAA guys can't have it both ways! (unless you trick Mr. Levy into believing your absurd nonsense)!

Anonymous said...

Good catch on that alter_fritz!

Looks like nothing but smoke and mirrors again on the RIAA's part, and our friend Ray might be coming along with a big hammer and a strong fan!

Anonymous said...

So, if I'm reading this right, the RIAA is entitled to fees because:
- They didn't have enough evidence of infringement to proceed with a case when they started their lawsuit.
- They won every motion for discovery, but when items were produced, it was not to their liking.
- They didn't know who the real infringer was because they initiated a lawsuit instead of having a polite conversation with Ms. Lindor.

Somehow, this was all Ray's fault for trying to fight a lawsuit, and for restricting the scope of what was asked for.

This fits in the same plan:
A. Sue someone (a few times, as a Doe, as a named defendant..)
B. Defendant claims didn't do it.
C. Continue procescution, assuming defendant did it.
D. When additional evidence backs up Defendant's case, withdraw, and complain that it was still Defendant's fault.


Alter_Fritz said...

Oh, and while RIAA-Eve is at it in besmirking names of nonparties in this copyrighinfringement action allegedly commited by Marie Lindor:

Woody Raymond like all the other names Eva is here hatefully besmirking is a non-party. He isn't the party sued here!

So if RIAA thinks Mr. Beckerman or the defendant is responsible for things allegedly said and/or done by this non-party....

... can we have please the most severe (malaysia!!) sanctions against Eve and Riaa-Rich and their clients because if we apply Eve's warped logic it is clear that these 2 lawyers and the well known recordcompanies are responsible for the misconduct of their "expert" Dr. Douglas Jacobsen!

Dr. J. for example violated clear court orders from Judge Levy by reading resumee files and other private stuff not relevant for the claim or defense of any party.

Anonymous said...

Of course, as we have been talking about all along, wont a second dismissal in effect be "With Prejudice", since this would be the second dismissal?

And of course, if this is the case, how likely do you think the judge will take seriously any requests for sanctions, when the Plaintiffs are in effect throwing in the towel in an unrecoverable way.....

Since of course a dismissal at this point entitles the Defendant to costs. Plaintiffs asking for sanctions in my opinion is totally unreasonable. If they wish the sanctions, let them PROVE their case FIRST, then ask for them.

The fact that they are asking for a dismissal tells me that they cannot prove their case at this point, and thus should take NOTHING.

If the computer in question was connected to the internet via an Ethernet cable, like 99% of such computers connnected to a broadband connection, there would be NOTHING on said computer's hard drive that would indicate if wireless was available.

Almost every brand of router sold in the last few years that have a wireless feature, have such wireless feature turned on and active by default right out of the box. Even if all the workstations connected were connected solely by Ethernet cables, that does not affect the availablilty of the Wireless connection to be used by anyone within range of that signal. Thus to hold the Defendant responsible for such connections, when it is clear the Defendant had NO KNOWLEDGE such connections were even POSSIBLE is wrong.

Further, looks to me that they want Defendant to pay because of her Family did not just "ROLL OVER" and give the Plaintiffs everything they wanted. Id remind the Plaintiffs that each of those family members are ADULTS and outside the control of the Defendant.

They also are crying because the case cost them a lot of money in their quest to gather enough evidence to go after the Defendant.

As a Network Professional with many years of experence, I can see from the case that the only "evidence" they had at the time they sued was there was some kind of device on a certain IP that is showing a list of files that may or may not be downloadable.

Any evidence as to the actual HUMAN who was responsible for this index of files was missing, thus without some kind of evidence from the Defendant, they were out of luck. When they examined the drive, guess even their expert had to admit it was not that device.

If there was a wireless device on that connection that day, NOTHING that Defendant or her Family will help them figure out who.

Thus, why cannot they just admit they have an unproveable case, cut their losses, pay your fees for their mistake and move on. That would be the honorable thing to do. However, would I expect that? In a word NO.

Anonymous said...

Did they just admit that they have no way to tell what computer was distributing their property.. let alone who was using that computer?

It is up to the defense to provide that information? And if they don't they should be sanctioned?


Scott said...

The RIAA desperately does not want to pay Ray for defending his client against their Federally-protected extortion racket. How low will they go? We're beginning to see.

Although I can't claim an encyclopedic memory of all the documents in this case (and I could be wrong), it does seem that Ms. Burton tries to support her position by making some factual claims that never surfaced in litigation up to this point. Is this ethical? I honestly don't know, but as a non-lawyer it certainly seems like she is trying to muddy the waters, in a variation on the Chewbacca Defense.

RIAA meets South Park. Except the recording industry gratuitously wrecks people's lives, and South Park doesn't. There will be no justice until the Justice Department wakes up and works to indict RIAA and record company execs.

Anonymous said...

Never have the RIAA Plaintiffs condensed so much of their total B.S. into such a small space before. Usually their filings are much more tree-killingly voluminous.

If one is to take this at face value, the Defendant and her lawyer have prevented these Plaintiffs from being able to dismiss their case earlier, and now want to punish them for that. This entire litigation strategy has been formed around punishing anyone who could be identified with copyright infringement in any way. They also seek to stay any further progress in this case due to the likelihood that they're losing badly and know it, so they are going to blame all their problems on the Defense. They say that the Defendant opposes this attempt to dismiss, and has refused to make their case for them from the very beginning. Good move by the Defense here.

The common man sees that there never was a case here to start with. And that if the RIAA Plaintiffs can't punish you in one way, they they'll try this different way. The RIAA Plaintiffs are the ones who deserve the severest sanctions here for pursuing the case vexatiously and unreasonably from the beginning with no evidence that they'd ever identified or sued the proper infringer, or that they could ever prove any actual infringement. Even if they found the computer they seek, and it had every file on it that they insist is present, that would fail to prove that even a single one of them was ever illegally distributed to another unauthorized user.

And the common man cannot understand how the RIAA could be searching extensively for two years to find a computer they never even knew existed until a very short time ago. That defies common sense.

So first they pursue Ms. Lindor. They sue her with no evidence that she ever committed copyright infringement. Once they realize it isn't her they don't drop the case as they should, but instead pursue Woody Raymond. Caught in a he-said-she-said situation about who may have been in the house 4 years ago, they completely believe one person and completely deny two others with no stated valid reason why one side is more credible than the other. And when another computer has been discarded, they swear it had critical evidence on with despite having no idea at all what was actually on it. This missing computer destroys this non-case how? And why should the Defendant and her counsel be required to pay for this lack of case? I'm certain neither of them had any hand in the loss, destruction, or disposal of the mystery computer now in question. After all this Plaintiffs want to exit this case, but still punish both the Defendant and her defense lawyer because the Defense refused to make the Plaintiff's ill-advised non-case for them.

Then they shout Vexatious Litigation on the Defense's part!

Hey RIAA, it's not the job of the people you sue to hunt down the actual, if any, infringers for you out of fear of your lawsuit. It's up to you to sue the proper people in the first place, which is not automatically the ISP account holder.

These Plaintiffs have no Good Faith.

{The Common Man Speaking}

Anonymous said...

Doesn't their letters they send out to the people they identify through the doe cases state "The evidence necessary for record companies to prevail in this action has already been secured."?

so why would they even need any discovery let alone the alleged computer?

Anonymous said...

This is the RIAA. They don't play nice. Ever.

And I just read on Wired that they're doing -exactly- what I expected on that other case, complaining that Mr. Beckerman notifying the judge that the Doe case is related to the other one is an admission of responsibility for the infringement.

Perhaps Mr. Beckerman can counter that by pointing out that it seeks the same discovery, so it's 'related' no matter what...

And in this case, it's clear that they intend to refile. Perhaps it can be blocked with some argument about 'judicial economy'? They've probably used up all their chances to amend their own claims and want to try something new, but I don't know if the rules allow this to be opposed.

Were there any counter-claims? If those were filed, they shouldn't be able to escape, right? And then maybe you could try to join any new case they brought forth to this one instead of letting them shop for another judge...

Well, assuming that any of that has any basis in law. I learned what little I know about law mostly from watching SCO, so I can't very well guarantee anything but some knowledge of what sharp practice looks like ... :(


derivative said...

If this were in front of any other judge, I would think it is a great thing.

But for the current judge, I reserve judgment. Was he bending over backward so the eventual slap comes down hard and appeal-proof, like Judge Kimball in the SCO case, or is he severely prejudiced toward the plaintiff here?

I think the time for finding this out just got a lot closer. All I know, if I were Ray, I would triple-check the next set of filings -- they are the most important ones in the case, at least unless and until it's time to file an appeal.

Good luck!

Nohwhere Man said...

If, I'm reading this right, the defendant is being called a vexatious litigant. Would someone please explain how that's possible (a defendant being vexatious)?

Justin Olbrantz (Quantam) said...

Hmm. I'd use this as material in one of my books, but I don't think it'd be believable enough.

Alter_Fritz said...

@nohwhere man

of course she is!

those well known and respected record companies are not use too much so far (only 2 cases against them so far!) to the fact that someone does not Roll over and pays them their extortion money!

So every kind of resistance which normal people would consider normal behaviour in your civil litigation procedures are percived by those psycopathic plaintiffs as this vex thingy!

btw. can someone pronounce that word for me please? (+)
"heard"(read it for the first time in Eve's filing and want to know how to pronounce it please)


Matt Fitzpatrick said...

"The loss of such critical evidence, as well as other obstructionist discovery responses, have severely and irreparably prejuduced Plaintiffs' ability to prove their case."

Need the Plaintiffs be reminded that this case, the case they need to prove, is against Marie Lindor? If the Plaintiffs have a reasonable basis to say that somewhere on Yannick Raymond-Wright's hard drive was evidence supporting this case that Marie Lindor is a direct infringer of their copyrights, let them produce that basis.

derivative said...

Albert mentioned about this being the second dismissal, which would obviate the "without prejudice" thing.

I don't think you even need to rely on that, though -- hasn't the statute of limitations expired? That's a straightforward thing to tell the judge -- "if they drop this case, it should be with prejudice, because they haven't ever alleged that any infringement occurred in the last three years." If you can get him to agree that the judgment will be final, and to go ahead and do it with prejudice, then there's that much less 'splainin to do when it's time to file for attorney's fees.

It's interesting that they use the evidence of a resume on the Lindor computer as being evidence of people knowing where Jr was. This brings up several issues: 1) Was there any kind of protective order that should have kept them from seeing/using/mentioning the resume? 2) This seems like an implicit admission that this *was* the "resident" computer at the Lindor residence, so that Ms. Lindor is innocent of any infringement. 3) Since they have seen documents on the computer, did they find any documents which would contradict Ms. Lindor's statement that she didn't know how to use a computer? I'm guessing not, or they would have used this evidence.

So, they are practically admitting that Ms. Lindor doesn't know how to use a computer, while simultaneously claiming that she should have known where someone else resided, by reading a file on the computer. Or maybe they are just saying that since Jr obviously knew where she lived and visited occasionally, it obviously follows that she should know where he lives. I think we all know families where that's not true, especially where the black sheep can't even keep it together enough to afford his own computer to write resumes on...

As far as Ray's "discovery abuse," I cannot fathom how a lawyer fighting on behalf of an innocent party to fully develop all defense theories, and to avoid disclosing private information, could ever be deemed to be committing "discovery abuse." That's just insane. It will be interesting to see if over-the-top statements like this ever wake judges Levy and Trager up.

I also cannot see how a defendant failing to offer exculpatory evidence, aka snitch on somebody else, could ever be a discovery abuse, although in some cases (especially if you don't have a bulldog lawyer like Ray) it may be ill-advised to take this high road of not implicating others.

In any case, asking a little old lady to remember someone bringing a laptop and connecting it to the internet on a visit or two a couple of years ago borders on the insane.

Finally, I think somebody else may have mentioned this, but if you can find the original letter from the SSC, you should lead with that -- why did the RIAA need any discovery at all? They had enough to prove your client's culpability at the outset.

Seriously, that set the tone for the whole thing -- if somebody calls you a thief and wants to extort money from you, why would you cooperate with them? And when you say "no" they know how to pile up the paperwork, and to stonewall on any discovery which could exonerate you.

And they are still at it. The next few weeks will truly reveal the real character of Judges Trager and Levy, I think.

Anonymous said...

Various claims are made by plaintiffs. Several of these claims allege actions of individuals other than the defendant. How relevant are such (real or imaginary) actions, being that the case is against only the defendant?

Anonymous said...

The RIAA files tens of thousands of sham lawsuits and they have the temerity to call the defense vexatious for not rolling over? These people know no shame.

Their letter amounts to "We sued the wrong person. It is the defendant's fault. Please sanction them."

I'm not sure how they could have sued the wrong person since they also claim that Media Sentry's secret magic black box is so perfect that it must be presumed to be 100% accurate and that the account holder alleged to have had the IP assigned to them at the time the magic box claims a file was offered on the internet is automatically guilty.

Anonymous said...

Did plaintiffs never ask for information about the make and model of routers used in defendant's household? Not doing so would mean they did a poor job during discovery, which weakens their current position.

Anonymous said...

Sanctions are calculated not to bring justice in the current case so much as they are calculated to keep this mess from ever happening again, right?

In that case, it's clear that the most appropriate sanction would be to enjoin the RIAA & their lawyers from ever suing anyone again, because it is the only sanction capable of preventing future harm.

But I'm not convinced the RIAA would like that sort of logic :-)


Harold O'Grady said...

Copyright Spamigation
The case of UMG Recordings, Inc. v. Marie Lindor in the EDNY has had a long and tortuous history. Fortunately for Ms. Lindor, her defense counsel, Ray Beckerman decided to fight back, taking an unusual tactical course: investigating the use of P2P network by RIAA member companies.

Using agressive discovery tactics to question the RIAA about its own use of P2P networks for sending music to radio stations was a great strategic tactic. The RIAA's refusal to answer the questions as "not relevant to the claim or defense of any party," "not relevant to the subject matter involved in this action," and not "reasonably calculated to lead to the discovery of admissible evidence" was unconvincing to the judge who rightly ordered them to respond.

Examining the numerous motions, pleadings and filings in both Westlaw and PACER reveals the extensive pre-trial motion conferences related to discovery, summary judgment motions and applications for attorney fees. This week's news that RIAA is now making a motion for voluntary dismissal of the three and a half year old case is good news. Let's hope that the dismissal will be with prejudice and that Ms. Lindor will be awarded attorney fees as the prevailing copyright defendant to which she is presumptively entitled under § 505 of the Copyright Act , Mostly Memories, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093 (7th Cir. 2008).

BLS Library Blog

James said...

They might be quitting the case, but they ain't quitting lying!

Anonymous said...

Re: Sanctions

Considering Ray asked for discovery sanctions against the RIAA in this case previously and was denied - I'd bet that sanctions will be denied again.


Scott said...

My homeboy Harold neglected to link back to his BLS Library Blog article referenced in his comment. Here's the link. Hope he wants to get his students at BLS interested in this area of litigation.