Wednesday, April 01, 2009

Univ. of New Hampshire student files motion to change venue from Colorado to New Hampshire in SONY BMG Music v. Fillo

In SONY BMG Music Entertainment v. Fillo, a case brought in Colorado -- the home base of the RIAA's lawyers Holme Roberts & Owen -- against a University of New Hampshire student, the student, who has been representing herself, has hired an attorney, and moved for a change of venue to New Hampshire.

Prior to making the motion, defendant's attorney contacted Plaintiffs’ counsel and asked for their consent to a change of venue, and they refused.

Amended complaint
Defendant's motion for change of venue
Defendant's memorandum of law

[Ed. note. The plaintiffs' counsel's refusal to change venue to the location where the defendant lives, works, and studies, and where most of the witnesses are, is but another example of the disgraceful behavior exhibited by plaintiffs' counsel in these cases. In my personal opinion, the lawyer who turned down the request does not deserve to be a lawyer. If I were the presiding judge I would order plaintiffs to show cause why Rule 11 sanctions should not be issued against their counsel. -R.B.]

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


Matt Fitzpatrick said...

If you're of the opinion that the real purpose of these lawsuits is to extract nuisance settlements by putting defendants who fight back through the financial wringer, then it makes perfect sense to put defendants through as much motion practice as possible, right?

RIAA plaintiffs over several years and many many lawsuits, through their counsel, have done little inconsistent with that theory. Why start now?

raybeckerman said...

It's just a filthy, low level, way to practice law, one that breeds contempt for our profession.

They are the sorriest excuses for lawyers I have ever seen.

Albert said...

I am surprised that the issue of Proper Service of Process has not been raised.

In many places, including the state where I live you can serve other people that live in the house where you also live. In this case, it appears the Devendant NEVER lived in Colorado after leaving for College.

Looking around the web, I found this quote from Colorado:

"Upon a natural person over the age of eighteen years by delivering a copy or copies thereof to the person, or by leaving a copy or copies thereof at the person’s usual place of abode, with any person over the age of eighteen years who is a member of the person’s family..."

Since clearly Colorado is not her "usual place of abode" while she attends school in New Hamshire, maybe a special appearance to dismiss for lack of proper service should have been done.

If she is not living in Colorado, service upon a family member in Colorado is NOT proper.

I also wonder if the reason they object is that 2 dismissal rule we have discussed here before. At this time, Defendant has now been sued twice, once as a John Doe in New Hampshire and now for the second time in Colorado. Maybe they are afraid this second dismissal to move back to New Hampshire will prevent their 3rd filing under the 2 strikes only rule.

Also from the Plaintiffs point of view, they are going to have a hard time forcing the witness that ID'd the IP address of the Defendant to come to Colorado if they decide not to. Without such witness, their case cannot be proved.

I have never seen a case before that so clearly shows it was filed in the wrong district. I wonder if they actually decided to do this because they could not actually locate her in New Hampshire to serve process, and decided serving her parents would be much easier. I dont have Pacer access, but do wonder from those that do, if there is another New Hampshire case under her name which was closed for lack of service of process. If so, the Colorado case actually might already be case # 3, and the Defendant would be entitled to dismissal under that 2 strikes rule.


Alter_Fritz said...

Well Albert,

your observation regarding the *LAW* is probably right I guess...

... but it's not that those "Lawyers" from Holme, Roberts and Owen actually care about what the law is, do they?

We have seen so many lows from them, and always we wonder if THAT "particularity" (as Mr. B.S. called their behaviour in the alleged enforcement of copyrights that their clients allegedly own) is the one that hit rock bottom but it seems Holme Roberts & Owen lawyers can always hit a bit lower.

Do they have some internal competition among their "approximately 240 attorneys in offices in Denver, Boulder, Colorado Springs, London, Los Angeles, Munich, Salt Lake City and San Francisco" going on about who manage to get away with the most outrageous pervertation of your laws? It nearly seems this way already after all this years since they signed responsible for the setup of this "pay us online - no questions asked "-website.

So we shouldn't be surprised about this one here, should we?
Remember the case with the homeless guy when the lawyers for a nearly identical set of Plaintiffs cartel did this "creative declaring" of events before the judge in charge?
Counsel for defendant Doe3, Mr Altmann just mentioned that case lately in his papers to the appeals court for the second circuit if i remember correctly.
Seems he can add now another incident to his list of footnotes that show with what kind of Plaintiffs (Sony-BMG, EMI, Vivendi Universal and Warner) and their counsel (Holme, Robers & Owen, Jenner and Block and the likes) the judges have it to do.

And for Lady Justicia's sake, why is it that it seems necessary to put every single of those HRO-"lawyers" on notice that what they write and declare under Rule 11 in those "new boilerplate" accusation papers logically MUST be a "misstatement of facts" if the previous ones used -where it was the Media Sentry guys that allegedly detected the alleged infringement and identified the particular defendant as the responsible person for it all- claim to be the one that were true?
This time it was another HRO guy that claimed these impossible events. Has Timothy all his "I escape Rule 11 sanctions"-cards already used on the new boilerplate complains he has signed himself?
Boy, if that is the tactic of HRO to put each of their attorneys names under those papers to have the inadvertable (that one judge one day finally sees behind it all and actually starts hitting plaintiffs and their counsels with declarations of Rule 11 violations) delayed as long as possible, then I fear the worst for your american justice system. HRO is growing like cancer and opening new offices in your country as evidenced on their webpage where they now say they already have over 250 lawyers they can use and a city more.

Where are all the judges in contrast to that?

Those Judges who sees what pervertation is done to your society and your perception of what is right and what is wrong that comes out of this crusade of Organised Music against progress and benefit for society at large?
Organised Music in their pursuit to prevent their outdated business model from becoming as obsolete as the iceblock-salesman on the corners became with the invention of home refrigerators!

Poor american justice system!

Alter_Fritz said...

P.S. regarding your mentioning of the mightbe invoked 2 dismissal rule.
Of course I'm not a lawyer and I actually don't know it anyway, but I guess, this scenario here is not at issue in this event.

Transfer of venue from HRO's home forum to NH "feels" to me not as being the same as a dismissal of for example the first John/Jane Doe Case that is used in Plaintiffs scheme.

But even if it would be, I doubt that HRO "lawyers" actually had such a fear in mind when they indicated to refuse a transfer.

In my Opinion the HRO lawyers are just bad bad bad guys (no stronger words out of respect for Ray's comment policies) and they did this here this time out of general character defect, not out of this very smart thinking about your rules for dismissal that came to your mind Albert.