Judge Denies Motion to Vacate RIAA Ex Parte Discovery Order in Atlantic v. Does 1-25

In Atlantic v. Does 1-25, the first of three cases in which computer programmer Zi Mei attacked the evidentiary showing made by the RIAA in support of its ex parte discovery order, Judge Laura Taylor Swain denied "John Doe's" motion to vacate the discovery order.

Order denying motion to vacate ex parte discovery order*.

* Document published online at Internet Law & Regulation

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Transcript obtained in Warner v. Does 1-149

We have obtained a copy of the transcript of the proceedings before Judge Owen which took place on Friday, May 19, 2006, in Warner v. Does 1-149:

Transcript of oral argument of John Does' motion to (a) vacate ex parte discovery order, (b) quash subpoena, and (c) sever and dismiss as to John Does 2-149*

Among the issues which had been put in issue by the motion papers were:

-whether the evidence the RIAA had submitted in support of the ex parte order sufficiently made out a prima facie case;

-whether the evidence the RIAA submitted was technically valid;

-whether merely 'making available' is a copyright infringement;

-whether the complaint in the action adequately pleads copyright infringement; and

-whether there was any basis for joining 149 different defendants in one case.

The following is an excerpt from the transcript:

18 THE COURT: You are skipping over one sentence, which
19 it reads that: "Exhibit A identifies on a
20 defendant-by-defendant basis that each defendant has, without
21 the permission or consent of the plaintiffs, downloaded."
22 MR. GABRIEL: Distributed and --
23 THE COURT: But you don't need to go beyond
24 "downloaded," do you?
25 MR. GABRIEL: I submit we don't. What the law
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
30


1 requires, contrary to what Mr. Beckerman says, is we need to
2 allege in a Complaint that we own a valid copyright, that we
3 have registered the valid copyright, and that the plaintiffs
4 had violated exclusive rights.
5 THE COURT: Isn't that the end of it?
6 MR. GABRIEL: And we have done that.
7 MR. BECKERMAN: Ask him to identify which songs the
8 defendant downloaded.
9 THE COURT: He did. He does in Exhibit A.
10 MR. BECKERMAN: No, he does not.
11 THE COURT: Yes, he does.
12 MR. BECKERMAN: If he does, he misrepresents to the
13 Court. Ask him what basis he has --
14 THE COURT: Counsel, look at Doe 37. The artist is
15 named what, Linkin Park, "One Step Closer."
16 MR. BECKERMAN: Your Honor, Mr. Gabriel described to
17 your Honor the investigation that he conducted. He said to
18 you -- he represented to your Honor that the investigation
19 consisted of his investigators at MediaSentry, using some
20 proprietary software and techniques, went on and downloaded
21 these songs, and that's what Exhibit A is. He's saying that
22 the plaintiffs' agents downloaded those songs.
23 THE COURT: He said the defendants downloaded it.
24 They allege the defendant downloaded.
25 MR. BECKERMAN: He has no basis for alleging that and
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
31

1 he told your Honor what the basis was.
2 THE COURT: He said if you go to trial and it doesn't
3 end up being proven, you have won your case.
4 MR. BECKERMAN: But he is here to admit to you that he
5 has no evidence of anybody -- of the defendants having
6 downloaded those songs. He has no clue as to how the
7 defendants --
8 THE COURT: Counsel, would you tell me how you get,
9 for example, to Doe 37? What I'm hearing here I'm having
10 trouble putting in some frame of rationality.
11 MR. GABRIEL: Yes, your Honor.
12 THE COURT: Tell me, how do you get to the seven or
13 eight songs for Doe 37?
14 MR. GABRIEL: We find these particular Doe share
15 files, as a number of all the other Does. We then will take a
16 picture of what is in their computer shared file.
17 THE COURT: Showing where it went?
18 MR. GABRIEL: It doesn't show a line. We know it got
19 to their computer, and we believe that provides a sufficient
20 Rule 11 basis for asserting downloading. Somehow it got to
21 their shared drive, and we do take it and make -- we then
22 download ourselves so we can confirm that it is our copyrighted
23 recording by listening to it, by making sure this is our
24 recording.
25 THE COURT: Run this by me again, please. You have
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
32
1 somebody go where?
2 MR. GABRIEL: Right into Kazaa, one of these programs
3 like you or I could.
4 THE COURT: Right.
5 MR. GABRIEL: And then they will look for people's
6 shared files who have a large number of music files.
7 THE COURT: How do you get, for example, to Mariah
8 Carey's "One Sweet Day"?
9 MR. GABRIEL: By looking at the person's shared file.
10 We get the whole shared file, and not everything --
11 THE COURT: But tell me, whose shared file?
12 MR. GABRIEL: We get the defendant's shared file, the
13 shared file on the computer associated with the defendant.
14 THE COURT: With at this point only identified as 37?
15 MR. GABRIEL: That's correct. Actually, more
16 specifically identified by this Internet protocol address that
17 I referred to you.
18 THE COURT: I got you.
19 MR. GABRIEL: So we know the numbers --
20 THE COURT: You look in that person's shared file?
21 MR. GABRIEL: Right.
22 THE COURT: And you see that they've got Mariah Carey
23 in there?
24 MR. GABRIEL: Right.
25 THE COURT: OK. And there is no authorization for
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
33

1 that?
2 MR. GABRIEL: Right.
3 MR. BECKERMAN: Nope, your Honor, they have no
4 knowledge of how that file got there. It might be completely
5 lawful. It could be a lawful --
6 THE COURT: It might be, but you know, if the bank
7 robber is running away from a bank in a car and he's got a bag
8 with $5,000 in the back, he might say I took that out as a
9 loan, and, therefore, you've got an issue of fact as between
10 him and the bank as to whether this isn't the guy they gave
11 $5,000 at the point of a gun. So that might be -- what you
12 just said is in my opinion what kills your position here.
13 They've got this and if it might be, and it is logical
14 that it is and entirely possible that it could be, they want to
15 know who it is and you want to depose him, right?
16 MR. BECKERMAN: No, they want to sue him.
17 THE COURT: Sue him, of course.
18 MR. BECKERMAN: Your Honor, the plaintiff has the
19 burden of establishing that they have a case. If your Honor --
20 THE COURT: I find on these papers they have
21 established that, and, therefore, your motion to suppress these
22 subpoenas is denied.

Warner v. Does is the case where two Two "John Does", one from the Southwest, the other from the Greater New York area, joined forces in Manhattan to fight back against the RIAA.

As it did in Motown v. Does 1-99 , the RIAA hesitated to adopt the strategy it had employed in Atlantic v. Does 1-25, and refrained from introducing any evidence in opposition to the defendants' motion. In Atlantic it had introduced a second declaration by RIAA executive Jonathan Whitehead which contradicted his first declaration, in attempting to rebut the attack by computer programmer Zi Mei on the legitimacy of the RIAA's "investigation". In this case, as in Motown, it only introduced a memorandum of law by its counsel.

The legal issues have been staked out in the following documents:

Complaint.*
Ex Parte Order.*
Second Ex Parte Order.*
John Does' Notice of Motion*
Affidavit of Morlan Ty Rogers in Support of Motion*
Affidavit of Zi Mei in Support of Motion*
Memorandum of Law in Support of Motion*
Memorandum of Law in Opposition*
Reply Memorandum of Law in Support of Motion*

John Does 37 and 61 had asked Judge Owen for a stay of the ex parte order and subpoena pending determination of their motion, since the turning over of their identities before the motion is decided would moot the motion.

March 31, 2006, Letter of Morlan Ty Rogers Requesting Stay

March 31, 2006, Letter of J. Christopher Jensen Opposing Stay as to Other 147 Defendants

Two similar motions remain pending. In Motown v. Does 1-99, all 3 aspects of the motion are pending before Judge Naomi Reice Buchwald. In Atlantic v. Does 1-25, the first aspect of the motion -- the request for vacatur of the ex parte discovery order on the ground of an insufficient evidentiary showing -- is pending, while the other 2 aspects of the motion (severance and dismissal for misjoinder, plus quashing of subpoena due to insufficiency of complaint) were decided in the RIAA's favor; the Atlantic case is before Judge Loretta Swain.

All of the above cases are in Manhattan.

Other motions which may be pertinent to the John Does' motions, because they involve the legal sufficiency of the RIAA's standard complaint, are Maverick v. Goldshteyn before Judge Trager in Brooklyn and Elektra v. Barker before Judge Karas in Manhattan.

*********************************

Personal comment from Ray Beckerman, one of attorneys for defendants:

"As the attorney for defendants I have this comment to make on today's proceedings:

"I am very disappointed in today's proceedings. I was hoping for a full and fair opportunity to air the landmark issues that were before the Court. Instead, it seemed that the Court was not familiar with the facts or the law, and placed a burden on the defendants to disprove the unsupported allegations the plaintiffs' counsel had irresponsibly made in their complaint and discovery application. This approach of course finds no support anywhere in our legal system, and was clearly erroneous.

"The judge first indicated it was his understanding that the plaintiffs had evidence that the defendants had made unauthorized downloads. When the RIAA's counsel -- to his credit -- admitted that the evidence showed only downloads by plaintiffs' own investigators, the judge then ruled that the RIAA is entitled to bring lawsuits to find out if the defendants had in fact downloaded the songs illegally, and cut off the oral argument.

"The judge also indicated that he was disinclined to believe anything I would say because I had said that the RIAA's lawsuits 'wreck people's lives'. I do not think that was an appropriate approach for a judge to take, especially on such important issues.

"If the Court's ruling were appealable, I would file an appeal. Unfortunately it is not.

"And it will never be subject to review by an appeals court, because the RIAA will -- as it always does -- discontinue the John Doe lawsuit.

"All in all, this was a dark moment for our country."

* Document available online at Internet Law & Regulation

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

p2pnet Under Attack; Our Readers Urged to Contribute to Legal Defense Fund

The excellent web site for news and commentary about p2p file sharing, p2pnet.net, published by Jon Newton, is being sued for libel by Kazaa. The basis for the suit is some negative commentary about someone at Kazaa by Jon's readers (i.e. not by Jon himself) in the Comments section.

Since p2pnet.net is in Canada, that's where the suit is being brought.

Cases like this are real important. They are a direct attack on freedom of speech. Big corporations with lots of money, using their money to foment frivolous litigation to shut down their critics, cannot be allowed to get away with this type of conduct, or you -- the reader -- will never be able to go anywhere to actually find out the truth.

I urge all of my readers to contribute, via Paypal, to Jon's legal defense fund:

Help Jon beat the lawsuit

If you'd rather send Jon a check, here's the address:

Jon Newton
PO Boxs 1532
Lake Cowichan,
British Columbia V0R 2G0
Canada

For information of progress of p2pnet ligitation defense fund: http://northcountrynotes.org/newton/

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Judge Says He Will Deny John Does' Motion to Vacate and Quash in Warner v. Does 1-149

Friday, May 19, 2006. In Warner v. Does 1-149 today, at the first major oral argument of a motion by "John Doe" defendants to (a) vacate the RIAA's ex parte discovery order, (b) quash the subpoena issued pursuant to the order, and (c) sever and dismiss the case as to all "John Does" other than Doe #1, Judge Richard Owen terminated the oral argument with an indication that he was denying the John Doe defendants' motion to vacate the ex parte discovery order and quash the subpoena issued to ISP Time Warner Cable. The judge did not indicate how he would rule on so much of the motion as sought to sever and dismiss as to John Does 2-149 for misjoinder.

Among the issues which had been put in issue by the motion papers were:

-whether the evidence the RIAA had submitted in support of the ex parte order sufficiently made out a prima facie case;

-whether the evidence the RIAA submitted was technically valid;

-whether merely 'making available' is a copyright infringement;

-whether the complaint in the action adequately pleads copyright infringement; and

-whether there was any basis for joining 149 different defendants in one case.

During the argument the Judge first indicated it was his understanding that plaintiffs had alleged that the exhibit A songs were downloaded by the defendants.

When the RIAA's lawyer conceded that the downloads were by the RIAA's own investigators, the Judge said the RIAA had the right to find out if in fact the defendants had downloaded them too.

When the defendants' lawyer -- the undersigned -- brought to the Court's attention that files on the defendants' computer might have been downloaded lawfully, the Judge cut off the defendants' lawyer's argument, and said that was the weakness in the defendants' case -- the word "might". The judge then indicated he was denying defendants' motion.

Earlier in the argument, when defendants' lawyer said that the plaintiffs' lawsuits were 'wrecking people's lives', the Judge asked where defendants' lawyer was getting that from, and indicated that in view of that statement he was inclined to disbelieve anything defendants' lawyer might say.

The proceedings were recorded, and a transcript will be posted when it becomes available.

Warner v. Does is the case where two Two "John Does", one from the Southwest, the other from the Greater New York area, joined forces in Manhattan to fight back against the RIAA.

As it did in Motown v. Does 1-99 , the RIAA hesitated to adopt the strategy it had employed in Atlantic v. Does 1-25, and refrained from introducing any evidence in opposition to the defendants' motion. In Atlantic it had introduced a second declaration by RIAA executive Jonathan Whitehead which contradicted his first declaration, in attempting to rebut the attack by computer programmer Zi Mei on the legitimacy of the RIAA's "investigation". In this case, as in Motown, it only introduced a memorandum of law by its counsel.

The legal issues have been staked out in the following documents:

Complaint.*
Ex Parte Order.*
Second Ex Parte Order.*
John Does' Notice of Motion*
Affidavit of Morlan Ty Rogers in Support of Motion*
Affidavit of Zi Mei in Support of Motion*
Memorandum of Law in Support of Motion*
Memorandum of Law in Opposition*
Reply Memorandum of Law in Support of Motion*

John Does 37 and 61 had asked Judge Owen for a stay of the ex parte order and subpoena pending determination of their motion, since the turning over of their identities before the motion is decided would moot the motion.

March 31, 2006, Letter of Morlan Ty Rogers Requesting Stay

March 31, 2006, Letter of J. Christopher Jensen Opposing Stay as to Other 147 Defendants

Two similar motions remain pending. In Motown v. Does 1-99, all 3 aspects of the motion are pending before Judge Naomi Reice Buchwald. In Atlantic v. Does 1-25, the first aspect of the motion -- the request for vacatur of the ex parte discovery order on the ground of an insufficient evidentiary showing -- is pending, while the other 2 aspects of the motion (severance and dismissal for misjoinder, plus quashing of subpoena due to insufficiency of complaint) were decided in the RIAA's favor; the Atlantic case is before Judge Loretta Swain.

All of the above cases are in Manhattan.

Other motions which may be pertinent to the John Does' motions, because they involve the legal sufficiency of the RIAA's standard complaint, are Maverick v. Goldshteyn before Judge Trager in Brooklyn and Elektra v. Barker before Judge Karas in Manhattan.

*********************************

Personal comment from Ray Beckerman, one of attorneys for defendants:

"As the attorney for defendants I have this comment to make on today's proceedings:

"I am very disappointed in today's proceedings. I was hoping for a full and fair opportunity to air the landmark issues that were before the Court. Instead, it seemed that the Court was not familiar with the facts or the law, and placed a burden on the defendants to disprove the unsupported allegations the plaintiffs' counsel had irresponsibly made in their complaint and discovery application. This approach of course finds no support anywhere in our legal system, and was clearly erroneous.

"The judge first indicated it was his understanding that the plaintiffs had evidence that the defendants had made unauthorized downloads. When the RIAA's counsel -- to his credit -- admitted that the evidence showed only downloads by plaintiffs' own investigators, the judge then ruled that the RIAA is entitled to bring lawsuits to find out if the defendants had in fact downloaded the songs illegally, and cut off the oral argument.

"The judge also indicated that he was disinclined to believe anything I would say because I had said that the RIAA's lawsuits 'wreck people's lives'. I do not think that was an appropriate approach for a judge to take, especially on such important issues.

"If the Court's ruling were appealable, I would file an appeal. Unfortunately it is not.

"And it will never be subject to review by an appeals court, because the RIAA will -- as it always does -- discontinue the John Doe lawsuit.

"All in all, this was a dark moment for our country."

* Document available online at Internet Law & Regulation

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Oral Argument Set for Friday, May 19th, at 2:15 P.M. in Warner v. Does 1-149; Open to the Public

In Warner v. Does 1-149 the first major oral argument has been set in a motion by "John Doe" defendants to (a) vacate the RIAA's ex parte discovery order, (b) quash the subpoena issued pursuant to the order, and (c) sever and dismiss the case as to all "John Does" other than Doe #1.

The confrontation is scheduled to take place on Friday, May 19th, at 2:15 P.M., at 40 Centre Street, New York, New York, Court Room Number 1106, before United States District Judge Richard Owen.

Proceedings are open to the public.

Among the issues to be decided:

-whether the evidence the RIAA had submitted in support of the ex parte order sufficiently made out a prima facie case;

-whether the evidence the RIAA submitted was technically valid;

-whether merely 'making available' is a copyright infringement;

-whether the complaint in the action adequately pleads copyright infringement; and

-whether there was any basis for joining 149 different defendants in one case.

Warner v. Does is the case where two Two "John Does", one from the Southwest, the other from the Greater New York area, joined forces in Manhattan to fight back against the RIAA.

As it did in Motown v. Does 1-99 , the RIAA hesitated to adopt the strategy it had employed in Atlantic v. Does 1-25, and refrained from introducing any evidence in opposition to the defendants' motion. In Atlantic it had introduced a second declaration by RIAA executive Jonathan Whitehead which contradicted his first declaration, in attempting to rebut the attack by computer programmer Zi Mei on the legitimacy of the RIAA's "investigation". In this case, as in Motown, it only introduced a memorandum of law by its counsel.

The legal issues have been staked out in the following documents (as of this writing, defendants' reply papers have yet to be served):

Complaint.*
Ex Parte Order.*
Second Ex Parte Order.*
John Does' Notice of Motion*
Affidavit of Morlan Ty Rogers in Support of Motion*
Affidavit of Zi Mei in Support of Motion*
Memorandum of Law in Support of Motion*
Memorandum of Law in Opposition*
Reply Memorandum of Law in Support of Motion*

John Does 37 and 61 have asked Judge Owen for a stay of the ex parte order and subpoena pending determination of their motion, since the turning over of their identities before the motion is decided would moot the motion.

March 31, 2006, Letter of Morlan Ty Rogers Requesting Stay

The RIAA agreed to a stay, but argued that the stay should only apply to the moving defendants and not to the other 147 defendants.

March 31, 2006, Letter of J. Christopher Jensen Opposing Stay as to Other 147 Defendants

The Court has not yet ruled on the stay.

* Document available online at Internet Law & Regulation

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Home Recording Rights Coalition Accuses RIAA of Betrayal

The Home Recording Rights Coalition ("HRRC") has accused the RIAA of going back on its word, and contradicting the representations it has made to Congress and to the United States Supreme Court, in its suit against XM Satellite Radio.

According to the HRRC, it chairman Gary Shapiro accuses the labels, and the entertainment industry as a whole, of abusing the assurances given to the courts, the Congress and the public at large when the industry pursued its Grokster lawsuit. "Then, entertainment industry representatives insisted that they did not by any means intend to threaten the sort of in-home, private, noncommercial recording that yesterday, they alleged violates the copyright law." Shapiro stated:

"The lawyer that signed the complaint against XM is the same lawyer who told the Supreme Court that ripping a CD to a PC and then to a handheld device (without paying any royalty) is lawful. He represents the same industry that, in seeking 'inducement' legislation, promised that it would never be applied against devices such as a TiVo personal video recorder. But yesterday the complaint against XM claimed that consumers who use their devices in such ways are violating the copyright laws, and that XM is therefore guilty of inducement."

HRRC Press Release

Complaint in Atlantic v. XM (RIAA's case against XM Satellite Radio)

Analysis by Electronic Frontier Foundation of Atlantic v. XM

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Feds Intervene in Fonovisa v. Alvarez in Texas, Try to Help RIAA

The United States Department of Justice has now tried to help the RIAA in a Texas case, Fonovisa v. Alvarez, filing a "Statement of Interest" opposing the defendant's motion to dismiss:

DOJ "Statement of Interest"*.

The Government conceded in its brief, however, that it has never prosecuted anyone just for "making available".

Unlike Elektra v. Barker, where the DOJ came into the case only in response to a brief by an amicus curiae, the Electronic Frontier Foundation, this time the DOJ just came into the case on its own. It thus appears that the RIAA and the DOJ are working together.

* Available online at Internet Law & Regulation

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

"Television Disrupted", by Shelly Palmer, Critizes RIAA Litigations against Consumers

Excerpt from important new book, "Television Disrupted" by Shelly Palmer, 1st Vice President of National Academy of Television Arts and Sciences, Chairman of Advanced Media Technology Emmy Awards, and award winning inventor, technologist, composer, and television producer:

"Record Industry vs. Consumers

"When the history of the recording industry is written, they will cite the RIAA's lawsuits against their customers as their darkest hour....[M]ost people think of it as winning the battle and losing the war.

"The recording industry is now an enemy of the public and this is truly sad. Consumers love the artists and hate the unbranded, faceless, nameless distributors that keep them from accessing what they now believe should be totally free. Of all the battles caused by the transition to networked media, the most bloodied and most devastated industry will be recorded music.

"The missed opportunity to understand the consumer and the unwillingness to adjust its thinking almost pale by comparison to the cultural and societal damage that the industry's collective "head in the sand" position has caused.....It is a business nightmare from which the industry will not awake....."

For more information about "Television Disrupted", go to www.televisiondisrupted.com

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Tenise Barker Responds to Government's Brief

Defendant Tenise Barker has filed her response to the United States Department of Justice's "Statement of Interest" in Elektra v. Barker.

Memorandum of Law of Defendant Tenise Barker in Response to Statement of Interest of United States of America*

* Document available online at Internet Law & Regulation

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Constitutionality of $750-per-song title damages claim challenged in UMG v. Lindor

The constitutionality of the RIAA's claim of entitlement to $750-per-song title damages, for songs on which it normally receives approximately 70 cents per-song-title in fees, has been challenged by the defendant in UMG v. Lindor.

Marie Lindor's Request for Pre-Motion Conference*
RIAA Response*

* Published online at Internet law & Regulation

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs