Recording Industry vs The People

Monday, April 09, 2007

RIAA Disputes Defendant's Objection to Magistrate Order Granting Protective Order for MediaSentry Agreements in UMG v. Lindor

The RIAA has filed a response disputing the defendant's objection to the Magistrate's order granting plaintiffs' motion for a protective order preventing defendant's lawyers from having copies of the RIAA's agreements with MediaSentry, in UMG v. Lindor

April 9, 2007, Response of RIAA to Defendant's Objection to Magistrate Order Granting MediaSentry Protective Order Motion*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online 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

RIAA Files Objections to Magistrate's Order Denying Motion to Compel Production of Son's Hard Drive in UMG v. Lindor

In UMG v. Lindor, the RIAA has filed objections to the Magistrate's order denying their motion to compel Ms. Lindor's son to turn over the hard drive to his own desktop computer:

April 9, 2007, Objections of RIAA to March 30, 2007, Order, Denying Hard Drive Production*

* Document published online at Internet Law & Regulation

p2pnet Reports: Stipulation of Dismissal With Prejudice Signed in Patti Santangelo Case

Following the March 30th "mystery document", it now appears that that the attorneys for both sides in Elektra v. Santangelo have signed a stipulation of dismissal with prejudice, leaving open only the question of whether or not Ms. Santangelo will be awarded attorneys fees, and if so how much, according to this report by Jon Newton of p2pnet:

Patti Santangelo v RIAA: battle won?

p2pnet.net news:- Odds are that Patti Santangelo, the New York mother who was the first RIAA victim to make a determined stand against the Big 4, helped to no small extent by p2pnet readers who put their money where their mouths were, contributing thousands of dollars towards her legal costs, has won her battle to clear her name and show up the Big 4 for the bullies they are.

She and her lawyer, Jordan Glass, have signed and submitted a stipulation to dismiss with prejudice the case lodged against her by the RIAA, clearly taking their cue from the language of US federal district court judge Colleen McMahon's response to Glass's letter of March 31. In it, he wrote Patti would stipulate to a dismissal of any sort only if she retained the right to move for legal fees.

McMahon's language seemed to indicate it was time to end the farce, and the court had the power to entertain a motion for legal fees.

But even if judge McMahon grants the dismissal, and there's every reason to believe she will, that still leaves two of Patti's children, Michelle, 20, and Bobby, 16, in the direct line of fire.

"With prejudice" means the Big 4 wouldn't be able to re-start the case at some time in the future, and if judge McMahon decides to grants fees and costs, they could be heavy.

Complete article

Commentary & discussion:

Slashdot

Friday, April 06, 2007

Capitol v. Foster Judge Agrees RIAA Deposition Notice Was Defective; Reschedules Deposition

Judge Lee R. West, presiding over Capitol v. Foster in Oklahoma, agreed with the defendant's contention that the RIAA's notice to take the deposition of defendant's expert was defective, and rescheduled the deposition to take place after, rather than before, the defendant's deposition of the plaintiff's expert. He also ruled that if the RIAA fails to comply with his previous order requiring production of the expert reports by 10 A.M. on April 9th, then the deposition notice is stricken altogether, and the RIAA may not take the deposition of defendant's expert at all:

April 6, 2007, Order Partially Granting Motion to Quash Deposition Notice*

* Document published online at Internet Law & Regulation

Thursday, April 05, 2007

RIAA Wants to Serve Additional Papers In Support of Motion for Confidentiality in Capitol v. Foster

After receiving Ms. Foster's objections to its motion for confidentiality of its attorneys billing records in Capitol v. Foster, the RIAA requested, and has received, permission to file additional papers:

Plaintiffs' Motion for Leave to Serve Reply Papers*
Order granting Plaintiffs' Motion for Leave to Serve Reply Papers*

* Document published online at Internet Law & Regulation

RIAA Serves Defective Deposition Notice in Capitol v. Foster; Foster Moves to Quash

The RIAA has served a defective deposition notice in Capitol v. Foster, in an attempt to take a deposition of defendant's expert witness on the subject of the "reasonableness" of the defendant's attorneys fees.

Ms. Foster has moved to quash the notice.

Notice of deposition*
Motion to quash deposition notice*

* Document published online at Internet Law & Regulation

Commentary & discussion:

RIAA Absurdity

Wednesday, April 04, 2007

Debbie Foster Opposes RIAA Request for Confidentiality of Its Attorneys Billing Records

In Capitol v. Foster, where the RIAA has under court order produced its attorneys billing records to the defendant's lawyer, but is now asking the Court to designate the documents as "confidential", Ms. Foster has opposed the RIAA's request for confidentiality:

April 3, 2007, Objections to RIAA's Motion for Protective Order*

* Document published online at Internet Law & Regulation

UC Santa Cruz Passes Along RIAA Demand Letter to Students, Suggests to Students "You May Want to Seek Advice from a Private Attorney"

We have obtained a copy of the RIAA's settlement demand letter sent to the University of California, Santa Cruz. The school has passed along the letters to students, but advised that

-the University of California has made not determination that you have engaged in copyright infringement or that you should enter into an early settlement with the copyright holder;

-It is solely your personal decision whether to avail yourself of the "early settlement" procedure;

-You may want to seek advice from a private attorney. For your information, the State Bar of California has a lawyer referral service -- please see http://www.calbar.ca.gov/state/calbar_generic.jsp?cid=10182

A copy -- with identifying information redacted -- of the complete set of what students received, is as follows:

University of California, Santa Cruz, Set of Letters*

* Document published online at Internet Law & Regulation

Ms. Lindor's Son and RIAA In Dispute Over Attorneys Fees

In UMG v. Lindor, where the Magistrate denied the RIAA's motion to compel Ms. Lindor's son to produce his desktop computer, Ms. Lindor's son's attorney has requested an award of attorneys fees, which the RIAA opposes:

April 2, 2007, Letter of Richard Altman (Re: Attorneys Fees)*
April 3, 2007, Letter of Richard Gabriel (Re: Attorneys Fees)*

* Document published online at Internet Law & Regulation

Santangelo Says No Dismissal With Prejudice Unless She Can Claim Attorneys Fees; Judge Says She Can Move to Dismiss With Prejudice

In Elektra v. Santangelo, the Judge of course did not sign off on the RIAA's "mystery document" filed last week, and instructed the defendant that she can make a motion to dismiss the case with prejudice.

Patti Santangelo had told the Court she had no objection to the RIAA's discontinuing the case "with prejudice", so long as she maintains the right to seek attorneys fees and costs.

"Memo Endorsed" Order Dated April 2, 2007, Advising defendant she is free to make motion to discontinue with prejudice*

Presumably the litigation will now move on to litigation over whether Ms. Santangelo is entitled to an attorneys fee award and in what amount. See Capitol v. Foster.

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net

JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove