Friday, November 07, 2008

Marie Lindor responds to RIAA "voluntary dismissal" and "discovery sanctions" motion, accuses RIAA lawyers of dishonesty and rule violation

In UMG Recordings v. Lindor, where the RIAA made a motion for voluntary dismissal without prejudice and for "discovery sanctions" against Ms. Lindor and her attorney, Ms. Lindor has served her responsive papers.

Her papers accuse the RIAA of persistent misrepresentations of fact throughout its papers, of violating the rules, and of misstating the law.

She argued that the only reason the RIAA is seeking a "without prejudice" designation is to help give it a basis for arguing against its being assessed with attorneys fees.

Declaration of Ray Beckerman in opposition
Memorandum of law in opposition
Exhibit A-Jacobson testimony
Exhibit B-Marie Lindor testimony pp 30-36
Exhibit C-Marie Lindor testimony p 24
Exhibit D-Marie Lindor testimony p 27
Exhibit E-June 20, 2006 Email Ray Beckerman to Richard L. Gabriel (Hard Drive)
Exhibit F-Draft stipulation (Hard Drive)
Exhibit G-Defendant's application to Magistrate Judge Levy for Discovery Rulings(Hard Drive)(Plaintiffs' Defaults)
Exhibit H-August 3, 2006, reflecting July 25, 2006, discovery rulings
Exhibit I-Timothy M. Reynolds email refusing to provide copy of transcript
Exhibit J-Letter in which Richard L. Gabriel admits that he called Mr. Raymond's employers
Exhibit K-Defendant's objection to Gustave Lindor motion as "fishing expedition"
Exhibit L-Ray Beckerman to Hon. Robert M. Levy responding to RIAA cross-motion
Exhibit M-May 9, 2006, RIAA Email transmitting first draft of Hard Drive stipulation
Exhibit N-April 7, 2006, RIAA Email apologizing for delay in responding re Hard Drive inspection
Exhibit 0-December 20, 2007, objection by defendant to RIAA expert submitting 5th version of report containing new matter
Exhibit P-Errata Sheet accompanying deposition transcript of Yannick Raymond-Wright
Exhibit Q-Ars Technica eye witness report of RIAA lawyers consulting "Recording Industry vs. The People during Capitol Records v. Thomas trial
Exhibit R-Kent State University Student Legal Services Office site
Exhibit S-Digital Music Law Class at University of Ottawa School of Law, Professor DeBeer lesson plan
Exhibit T-Beckerman, Ray, "Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations", The Judges' Journal, Summer 2008 (American Bar Association--Judicial Section)
Exhibit U-Reynolds, Daniel, Note, "The RIAA Litigation War on File Sharing and Alternatives More Compatible with Public Morality", 9. Minn. J. L. Sci. Tech 977 (2008)
Exhibit V-MediaSentry inconsistent statements
Exhibit W-December 12, 2006, decision of Hon. Robert M. Levy, granting preclusion as to song files not produced in discovery, denying preclusion of proof by alternative means

Commentary & discussion:
Daily Online Examiner
Bottree: Internet Marketing Commentary

Keywords: lawyer 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 portable music player
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.


raybeckerman said...

Comment was rejected for undignified language.

Anonymous said...


I really hope those frivolous and duplicitous RIAA motions backfire on them. Ray's responses are clear, devastating and should be more than a little frightening to the RIAA's council.

Again, the RIAA council has no shame in moving for a dismissal without prejudice after falsely prosecuting an innocent woman for 4 years, and then wanting sanctions against her council for having the gall to ably defend her. "We were wrong so we are going to punish you for that." They are like somebody kicking puppy because they are angry for being caught raiding the cookie jar. They really are shameless. I do hope their hubristic mendacity catches up with them.

Anonymous said...

Just reading about the garbage they tried to pull over on you made my blood pressure spike about 30 points!

I hope the judge calls the RIAA to task for all of this (and I would gladly sell an organ to be a fly on the wall when/if that happens!)

Good luck with this!

Anonymous said...

You have got to love the irony of how the RIAA law-machine is desperatly trying to paint themselves out as victims in this entire ordeal.

I really hope the judge sees reason and makes the copyright-mafia pay the bills for their crusade on their customers.

raybeckerman said...

How can you call them a "law-machine"?

Did you mean "outlaw-machine"?

Anonymous said...


Not only have I read the plaintiff's motions, I have read your response in its entirety. Others will -- and have --, on reading your response, express their outrage or anger. But I'll say, amid all that, I'm envious. From the response, I understand you've been practicing law for 29 years. I'm going to guess that, until now, nobody's been stupid or desperate enough to make you defend yourself, your practice and your profession in twenty pages.
The people that seek such situations inevitably fail. The only publicity you've run is this blog, but the model for it, and its reason for existence is evident to the community you're targeting. Contrary to how your opponent may characterize it, we readers know that RIvTP exists because you seek, on the one hand, to leverage technical knowledge that would otherwise not be available to defendants, and, on the other, to redress the imbalance inherent when a well-funded litigant goes after thousands of unrelated and uninformed victims. The blog isn't spreading hatred; it's helping provide the best possible defense for your defendants, and incidentally helps the defense of hundreds, if not thousands, of other people caught up in the same web of litigation.

So, in short, it's clear that when the recording companies – or rather their 'counsel' — see you, they see one of the few lawyers willing to stand up to them, and provide ordinary people with the best defense they can possibly have. And it's clear that they want to suppress that -- of the thousands of cases, many of which we know by their methodology are false, only one so far has gone to trial — and if we only had the plaintiffs' counsel to rely on, and not your blog, we'd still believe falsely that plaintiffs had actually won a case. In short, yes, they're coming after you personally, and it's an act of desperation.

And that's why I'm envious. These charges amount to an attack not only on you personally, but on your profession (which is also theirs, I suppose) and the very principles on which the legal system is founded. In twenty pages, you not only defended your client, you made it clear that plaintiffs had crossed the line from litigating a case to demanding that the legal system itself be changed to meet their well-funded needs, regardless of the facts.
I'm certain that in the twenty-eight years prior, you never had to defend your calling in anything more serious than a cocktail party. And I'm envious that, not only have you been handed the moment to defend your calling, but that you did it so well.

I just hope I'm never as lucky as you.

raybeckerman said...

Thank you, dingerx, for your kind words.

You guessed right that I have never been attacked like this before. I have always taken my professional responsibilities very seriously, and sometimes paid a price for doing that. I would never ever have expected to be on the receiving end of such garbage.

But if someone's got no qualms about lying, I guess they can accuse anybody of anything.

If Holmes Roberts & Owen were a stock I would be selling it short about now.

Anonymous said...

Dingerx expresses my feelings too. I just hope the judge sees that way also. I'm not surprised at the justified suppressed anger that comes through in your declaration and memorandum.

Really, the RIAA should engage brain before submitting motions.


Anonymous said...

"Ray Beckerman said...
How can you call them a "law-machine"? Did you mean "outlaw-machine"?"

Well, yes, I do, my phrasing might be a little clumsy at times since english isn't my native language =)

And there are far worse things I would like to call them but they arent really appropriate to post on a public forum ;)

Matt Fitzpatrick said...

Whew! That sure looks like it was a lot of work. Take some well earned time off this holiday weekend!

Sopor said...

First off... Dodgy, if English is not your first language, you certainly exhibit a better mastery of it than most of us native-speakers! (in fact I'm willing to bet that statement of mine was NOT grammatically correct!)

Ray, Three Cheers! Keep on fighting the good fight! We need more people like you in this country!


Anonymous said...

The response to their motion for dismissal without prejudice was the best legal paper I've ever read. Usually you get turned off by all the legalese that gets thrown around.

My favorite snippet would have to be "They cite -- and therefore presumably have read -- Zagano v. Fordham University...". You are doing your profession proud. Lawyers get a bad rep at times for exactly what your opposition is doing now (amoung other things). You on the other hand make me and hopefully other people realise that there are honourable people in the profession.

I must say that though I am half a world away I will be watching with anticipation for the courts decision. If you need any technical help (programming, etc) it would be my pleasure to donate it.



Anonymous said...

I always love reading these things. Your writing style and diction are as entertaining to read as any novel I could sit down with. You somehow manage to speak in a professional and dignified manner and still have the pages fairly ooze with your disgust and disdain. Its a joy to follow along in your methodical and logical deconstruction of the demented ramblings that pass for legal arguments from the RIAA, a bright spot in an otherwise dark and depressing saga.

Anonymous said...

To me, if any case speaks an attorney fee award, this is it.

Four years of going after a woman who has NEVER used a computer, for an act that involves a computer. All this simply because her name was on the internet account.

Also, I remember their "expert" claiming they had evidence that a router was not used on the internet account in question. I am not a court qualified expert, but my training and experence tells me after reading the expert's statement that his conclusion was false. If he observed a public IP on a Computer, that does NOT prove a router was in use because of the DMZ feature built into almost every router. Also, since he did not examine the machine right after the time of the MS observation, this fact is meaningless. If the computer was connected even once after the investigation time, or the DHCP lease expired while it was still connected, that address could have changed. It is doubtful that address has any meaning whatsover. I am sure it was NOT the IP address found by the MS investigation, or that fact would have been shouted from the rooftops.

The other questionable item was their claim that the P2P software was installed on a external USB drive. Of course it is possible to install any software on an alternate drive, but any person having knowlege of the operation of the Windows OS would also know the shared libraries (DLL's) and registry entries, along with launch shortcuts are always installed on the main drive, which they did examine and it appears they found NO evidence of.....

Now that they are clearly aware of how bad their expert is, it is time for them to walk away from not only this case, but most of their other cases. This is because they have received bad advice from their expert. They might get away with that once, claiming they did not know, but now that they are on notice that their expert has a problem, if they continue to use this person, they should get slapped hard next time.

I have been a network admin for over 20 years. Almost anyone in this business would get a very good laugh reading his reports and testimony. The main reason in my opinion he fails the Daubert factors is that his statement makes it clear to me that he does not fully understand the subject matter of which he claims to be an expert.

Again, I say they should pay and pay hard this time. If they get away in this case without paying, no defendant will ever collect, since clearly this is one of, if not the most compelling case for a fee award that I have ever followed.

Good luck, and I do hope you win this one.


Anonymous said...

I could be wrong but my memory of the expert report was that he was basing his opinion on IP information found in the data of the FastTrack protocol. I have not reread the report though.
Basically what I remember was he was comparing the TCP source address to some IP address embedded in the data packet by the client. The fault here is assuming that the client is embedding the IP address found on the local machine and is not doing some kind of reverse lookup to determine the public address. I do know that much about the FastTrack protocol or the clients out there, so I do not know which behavior is the norm or why it is embedding that information rather than not just relying on the packet header.

I know the methods we use on our network for detecting NAT devices are all based on looking for oddities that are not normal TCP traffic but are normal for NAT devices. None of these methods are full proof by any means and I do not remember any of these methods being discussed by their expert.

DLL files can be located along side where ever the executable is and can actually be located anywhere, so long as the programmer knows how to locate them, but the registry, that of course would be on the system drive and assuming they where not running a portable apps style version of a Kazaa client, a third party client or sandboxing the registry entries into a data file, you would expect to find something left behind.