Friday, December 19, 2008

RIAA having a tough time following the rules and the court's instructions in Nebraska, in Arista Records v. Does 1-6

In a Nebraska case, Arista Records v. Does 1-6, although the case is ex parte, the RIAA seems to be having a tough time following (a) the rules and (b) the Court's instructions.

First their motion for discovery was denied because they'd failed to follow the local rules. The Court's order denying the motion appended a copy of the rules for the RIAA's lawyers to read.

Then, after the Court allowed them discovery and established a schedule, the RIAA's failure to follow the schedule resulted in a Report and Recommendation from the Magistrate Judge recommending dismissal of the case, but "without prejudice".

[Ed. note. Why would the dismissal be "without prejudice"? It seems to me that if a case is dismissed for failure to follow the Court's orders, the dismissal should be "with prejudice". - R.B.]

Order denying motion for discovery
Order granting motion for discovery
Report and Recommendation recommending dismissal "without prejudice"

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


Jadeic said...

Perhaps the court too cannot follow its own rules on when to dismiss with/without prejudice...


Anonymous said...

This man notes interesting (and disturbing) aspects to the court's granting of leave to take immediate discovery.

1. Plaintiffs may serve immediate discovery on the University of Nebraska - Lincoln to
obtain the identity...including...and Media Access Control addresses for each Defendant. The subpoena may also seek all documents and electronically-stored information relating to the assignment of any
IP address which UNL cannot link to a specific Doe Defendant.

Since when should MAC addresses be discoverable in this manner, this man questions?

Also, Does which cannot specifically be identified are in worse shape because all documents relating to them are to be turned over. Why is this fishing expedition allowed?

2. Any information disclosed to plaintiffs in response to the Rule 45 subpoena may be used
by plaintiffs solely for the purpose of protecting plaintiffs' rights under the Copyright Act.

Without limiting the use of this information the court has opened the door to *anything* that the RIAA considers necessary to protect their rights. This man suggests that this condition was so poorly thought out and badly written that it might as well have been omitted in its entirety.

6. If and when UNL is properly served with a subpoena, UNL shall immediately preserve the subpoenaed information pending resolution of any timely-filed motion to quash.

Does mean that the university was under no obligation to preserve any of this evidence until the subpoena actually arrived? Then why didn't they trash it while they could?

8. Any requests by plaintiffs, defendants, UNL, any other interested party for changes of
the deadlines established by this order shall be directed to the undersigned magistrate judge by
electronically-filed written motion. A proposed order must be forwarded to chambers by email to

Now you know who to directly complain to about this, all you interested parties.

{The Common Man Speaking}

Unknown said...

He basically told UNL that they had to turn over their DHCP logs for the entire campus to the RIAA.

That's a bonehead move