Ex parte discovery cases
Legal challenges to ex parte discovery procedure
Litigations against named defendants
Commencement of action
Pro Se representation
Challenges to sufficiency of complaint
Suits against children
Suits against the disabled
Death of defendant
Settlement during litigation
The RIAA lawsuits pit a small number of very large recording companies against individuals who have paid for an internet access account.
On the plaintiff's end, the owners of the underlying copyrights in the musical compositions are not involved in the case; neither are many smaller record companies.
As to the defendants, since no investigation is made to ascertain that the defendant is actually someone who engaged in peer to peer file sharing of copyrighted music without authorization, there are many defendants who have no idea why they are being sued and who did nothing even arguably violative of anyone's copyright. Defendants have included people who have never even used a computer, and many people who although they have used a computer, have never engaged in any peer to peer file sharing.
Sometimes the cases are misleadingly referred to as cases against 'downloaders'; in fact the RIAA knows nothing of any downloading when it commences suit, and in many instances no downloading ever took place.
It is more accurate to refer to the cases as cases against persons who paid for internet access which the RIAA has reason to believe was used by some person -- possibly the defendant, possibly someone else -- to engage in peer to peer file sharing.
EX PARTE DISCOVERY -- THE "JOHN DOE" PHASE.
At the core of the RIAA lawsuit process, is its initial lawsuit against a group of "John Does".
Here is how it works:
A lawsuit is brought against a group of "John Does". The location of the lawsuit is where the corporate headquarters of the internet service provider (ISP) is located.
All the RIAA knows, or believes it knows, about the people it is suing is that they are the people who paid for an internet access acount for a particular dynamic IP address.
The "John Does" may live -- and usually do live -- hundreds or thousands of miles away from the City where the lawsuit is pending, and are not even aware that they have been sued.
The RIAA is aware that most of the defendants do not live in the state, and are not subject to the jurisdiction of the Court, but bring the case anyway.
They are also aware that under the Federal Rules of Civil Procedure there is no basis for joining all these defendants in a single lawsuit, but do indeed join them in one case, sometimes as many as several hundred in a single "litigation".
The only "notice" the "John Does" get is a vague letter from their ISP, along with copies of an ex parte discovery order and a subpoena, indicating that an order has already been granted against them: i.e., instead of receiving notice that the RIAA is applying for an order, they instead are notified that they have already lost the motion, without ever even having known of its existence.
They are not given copies of (i) the summons and complaint, (ii) the papers upon which the Court granted the ex parte discovery order, or (iii) the court rules needed to defend themselves, all of which are normally provided to defendants in federal lawsuits. Most recipients of this "notice" do not even realize that it means that there is a lawsuit against them. None of the recipients of the "notice" have any idea what they are being sued for, or what basis the Court had for granting the ex parte discovery order and for allowing the RIAA to obtain a subpoena.
They are told they have a few days, or maybe a week or two, to make a motion to quash the subpoena. But if they were to talk to a lawyer they could not give the lawyer an iota of information as to what the case is about, what the basis for the subpoena is, or any other details that would permit a lawyer to make an informed decision as to whether a motion to quash the subpoena could, or could not, be made. What is more, the lawyer would have to be admitted to practice in the jurisdiction in which the ex parte case is pending, in order to do anything at all.
In other words, except for lawyers who are knowledgeable about the RIAA tactics, no lawyer could possibly have any suggestions that would enable "John Doe" to fight back.
So "John Doe" of course defaults. Then the John Doe "case" may drag on for months or even years, with the RIAA being the only party that has lawyers in court to talk to the judges and other judicial personnel.
The RIAA -- without notice to the defendants -- makes a motion for an "ex parte" order permitting immediate discovery. ("Ex parte" means that one side has communicated to the Court without the knowledge of the other parties to the suit. It is very rarely permitted, since the American system of justice is premised upon an open system in which, whenever one side wants to communicate with the Court, it has to give prior notice to the other side, so that they too will have an opportunity to be heard.).
The "ex parte" order would give the RIAA permission to take "immediate discovery" -- before the defendants have been served or given notice -- which authorizes the issuance of subpoenas to the ISP's asking for the names and addresses and other information about their subscribers, which is information that would otherwise be confidential.
In the United States the courts have been routinely granting these "ex parte" orders, it appears. (Not so in other countries. Both Canada and the Netherlands have found the RIAA's investigation too flimsy to warrant the invasion of subscriber privacy. Indeed the Netherlands court questioned the investigation's legality.).
We are aware of a single instance in which a Magistrate Judge sua sponte rejected the application because there was no basis for its ex parte character. In Capital v. Does 1-16 in the District of New Mexico, Magistrate Judge Lorenzo F. Garcia directed the RIAA to confer with the University of New Mexico with a view towards establishing a procedure to give all affected parties prior notice and an opportunity to be heard in connection with the motion.
Once an ex parte order is granted, the RIAA issues a subpoena to the ISP, and gets the subscriber's name and address.
The RIAA then discontinues its "John Doe" "ex parte" case, and sues the defendant in his own name in the district where he or she lives.
Thus, at the core of the whole process are:
(1) the mass lawsuit against a large number of "John Does";
(2) the "ex parte" order of discovery; and
(3) the subpoenas demanding the names and addresses of the "John Does".
Recently the RIAA went into federal court in Denver -- where its lawyers are based -- and made an ex parte application to have the Court dispense with the need for any court order at all; the Magistrate to whom the application had been assigned declined to rule on that request, but did give the RIAA the ex parte discovery order it had sought.
Legal challenges to ex parte discovery procedure.
This process is being challenged in Boston, Massachusetts, where a motion to quash and vacate has been made in Arista v. Does 1-21, on the grounds of insufficiency of the evidentiary showing and misjoinder.
Even without a challenge, a Magistrate Judge in New Mexico recognized that there was no basis for moving ex parte, rather than on notice, and sua sponte denied the RIAA's application, in Capital v. Does 1-16. Magistrate Judge Garcia directed the RIAA to confer with the University of Mexico's lawyers to work out a plan for giving prior notice to the students named as "John Does".
This process was unsuccessfully challenged in 3 cases in Manhattan federal court in early 2006: Atlantic v. Does 1-25 before Judge Swain, Motown v. Does 1-99 before Judge Buchwald, and Warner v. Does 1-149, before Judge Owen, in which "John Doe" defendants represented by Ray Beckerman and Ty Rogers brought motions to (a) vacate the ex parte discovery order on the ground that it had not been supported by competent evidence of a prima facie copyright infringment case, (b) quash the subpoena on that ground plus the additional ground that the complaint fails to state a claim for relief, and (c) sever and dismiss as to all defendants other than John Doe #1.
The moving parties were from Iowa, Texas, Long Island, and North Carolina -- i.e. not one of the John Does was someone who could properly be sued in Manhattan federal court.
All 3 motions were denied.
The decisions are not appealable, since they are, theoretically, "interlocutory". However, it is the RIAA's usual practice to discontinue the "John Doe" cases, which means that there will never be a final judgment in the case, so the orders will never be brought to appellate scrutiny.
The courts have recognized and agreed with the severance point, however, noting that it is improper to join the multiple John Does. See, e.g., Fonovisa v. Does 1-41, 04-CA-550 LY (W.D. Texas, Austin Div., 2004). The Fonovisa court ordered the RIAA to cease its practice of joining "John Does". The RIAA, however, has continued the practice. We are not aware of any contempt motions having been made yet.
Prof. Charles Nesson of Harvard Law School has called upon Harvard University to resist the RIAA's "John Doe" subpoena process.
A new ex parte "John Doe" litigation tactic -- this one involving neither an ISP nor a college -- has surfaced in Chicago, Illinois, and in Fresno, California. The Fresno case, SONY v. Does 1-10, which is an outgrowth of the discontinued Sacramento case, SONY v. Merchant, is being challenged by some of its apparent targets.
PRE-LAWSUIT SETTLEMENT PHASE
After getting the name and address of the person who paid for the internet access account, they then send him or her a letter demanding a "settlement".
Their settlement is usually for $3750, non-negotiable, and contains numerous one-sided and unusual provisions, such as a representation that peer to peer file sharing of copyrighted music is a copyright infringement (a representation that is far too broad, undoubtedly there are 'sharing' behaviors with digital files, as there are with cd's, that are not copyright infringements). Even certain innocuous provisions, worded in a way to make them obligations of the defendant but not the RIAA, are deemed 'non-negotiable'. At bottom, the settlement is cold comfort to the defendant, because it does not speak for the other potential plaintiffs -- the owners of the copyrighted work, or the other record companies not represented by the RIAA litigation fund. That this omission is significant is illustrated by the new wave of copyright enforcement actions by music publishers against guitar tablature sites. There is nothing to prevent them from suing the individuals who have settled with the RIAA over the sound recording rights.
The newest wrinkle in the RIAA's pre-litigation settlement strategy is to encourage "early settlements" prior to commencement of a litigation. The RIAA has even set up a web site where people can go to make these settlements. The RIAA has stated that the settlements will be for a $1000 or more less than otherwise. However the first such settlement we have heard of is for $3500, which is only $250 less. We have heard of $3000 settlements being "offered" to college students. The RIAA has opened this initiative on two fronts, (1) the ISP's, and (2) colleges and universities. Some colleges have cooperated, forwarding the RIAA letters to the students, some have not. It remains to be seen how the ISP's will react.
LITIGATIONS AGAINST NAMED DEFENDANTS
Commencement of action.
If there is no settlement, the RIAA then commences suit against the named defendant in the district in which he or she resides. A boilerplate complaint is used which accuses the defendant of "downloading, distributing, and/or making available for distribution" a list of songs. There are actually 2 lists, a long list (exhibit B) and a short list (exhibit A). The long list is a 'screen shot' of a list of file names which were allegedly in a shared files folder. The short list is allegedly a list of song which the RIAA's investigators were able to download.
No details as to how, when, or where the alleged "infringement" took place are pled.
A preliminary procedural question is whether the cases are "related", and therefore should all be assigned to the same judge. In the Southern District of New York these cases against unrelated defendants are not treated as related; in the Eastern District of New York they are treated as related, and every new case is assigned to the same District Judge/Magistrate Judge team. In Maverick v. Chowdhury and Elektra v. Torres the RIAA's designation of all its cases as related has been challenged by the defenants.
If the defendant defaults, plaintiffs apply for, and apparently usually obtain, a default judgement for $750 per Exhibit A song -- a number which is over 1000 times the 70-cent amount for which the license to the song could have been purchased. This measure of damages has been challenged. (See Damages below.)
Despite the disfavored nature of default judgments, the strong public policy against matters being decided on default, and the almost inevitability of a Court's vacating a default which has not been sitting there for an awful long time, the RIAA, consistent with its "scorched earth" policy, appears to have a practice of fighting strenuously over every default it gets. In Warner v. DeWitt, in Chicago, it procured a default judgment, and refused to stipulate to vacate the default. Defendant was forced to move to vacate, and the motion was granted.
In Atlantic v. Boggs, in Corpus Christi, Texas, it refused to waive defendant's default, and moved for a default judgment based on defendant's alleged "nonappearance". The Court, in denying the RIAA's motion, reminded the RIAA that the defendant had in fact appeared.
In Elektra v. Santangelo II, despite the fact that they had already entered into a discovery schedule with defendant's lawyer, they obtained a default judgment. A motion to vacate the default judgment will be made in April at an upcoming conference.
Pro Se representation.
While it is of course preferable for a defendant to have legal representation in these matters, the economics often makes it impossible. We note that a pro se litigant in the Middle District of Alabama succeeded in staving off a summary judgment motion by the RIAA's legal team,which included the RIAA's top lawyer Richard Gabriel, in Motown v. Liggins (see Summary judgment below). In Motown v. DePietro, in Philadelphia, a pro se litigant defeated, for the time being, a summary judgment motion made by the RIAA. However, she may be facing a new discovery sanctions motion based on alleged spoliation of evidence.
The most important things a pro se litigant should know about are as follows: (1) there is a pro se clerk in every federal court house; you should go in and see the pro se clerk for assistance in putting in your answer; (2) from the very outset you must make it clear that you are demanding a jury trial, and do not let anyone talk you out of demanding a jury trial; you must put a jury demand in your initial answer; (3) the RIAA's attempt to get your hard drive is invasive and improper, and you should not let it happen without safeguards; you should make a copy of the protecive order in SONY v. Arellanes and show it to the judge; (4) the RIAA does not necessarily have the right to take depositions of your family members, and you should ask the judge for protection from that; (5) if there are any children 18 or younger involved, you should ask the judge to appoint a guardian ad litem to protect them, as was done in Priority Records v. Brittany Chan, and the order should provide that the RIAA has to pay for the guardian ad litem fees; and (6) even though you are pro se you can hire a lawyer to give you advice.
Challenges to sufficiency of complaint.
There have been seven fully briefed challenges to the sufficiency of the boilerplate complaint in the form of motions to dismiss complaint, 3 in Texas, 1 in Minnesota, 1 in Arizona, and 3 in New York; my firm handled the 3 New York motions. A new dismissal motion has been made in Elektra v. Dennis in Jackson, Mississippi.
In Elektra v. Santangelo, in Westchester, the motion was denied.
An unusal result occurred in Interscope v. Duty, in Arizona. The judge denied the defendant's dismissal motion, not because he agreed with the RIAA, but because he didn't feel he understood the technology well enough to rule on the case.
Then, in Waco, Texas, in Warner v. Payne, in Fonovisa v. Alvarez in Abilene, Texas, and in Maverick v. Goldshteyn in Brooklyn, New York, the judges followed the Interscope decision, declining to decide whether 'making available' is a copyright infringement, and upheld the complaint. The motion was also denied in Arista v. Greubel, in Fort Worth, Texas.
In Elektra v. Barker in Manhattan, the motion is pending, and the RIAA has cited to the judge their victories in the other six (6) cases. In Barker, however, unlike in other cases, amicus curiae briefs have been submitted by the Electronic Frontier Foundation (EFF), the Computer & Communications Industry Association, and the Internet Industry Association, in support of Ms. Barker's motion, and by the MPAA in opposition to it. Additionally the American Association of Publishers requested permission to file such a brief, and the United States Department of Justice submitted a "Statement of Interest" taking issue with an argument made by the EFF. Briefing was completed in the spring of 2006, and oral argument was held by Judge Kenneth M. Karas on January 26, 2007. The parties are now awaiting the Court's decision. Judge Karas indicated that he will not "punt" on the "making available" argument, but will decide its validity. A transcript of the oral argument in Barker is available online.
The Department of Justice also submitted a "Statement of Interest" in Fonovisa, also on the side of the RIAA, relating to the same limited issue.
A new dismissal motion may be made in Westchester, in Warner v. Cassin, depending on the outcome of the motion in Elektra v. Barker.
In Elektra v. Perez, 2006 WL 3063493, in Oregon, a case which wasn't on our radar until we tripped across the October, 2006, decision on Westlaw, the judge denied a motion to dismiss, and appears to have resolved the "making available" argument in the RIAA's favor, but the procedural context was unusual: it was in response to the RIAA's motion to dismiss its own case. The court in Motown v. DePietro, in a footnote, likewise ruled that "making available" is actionable, but DePietro is a pro se case, and a reading of the footnote -- which relies on dictum from the 2001 Ninth Circuit decision in Napster -- suggests that the issue was not fully briefed to the Judge.
On at least one occasion, the RIAA sought to amend its boilerplate complaint to add a secondary liability theory against a parent, in Capitol v. Foster. Although no dismissal motion was ever made (the RIAA had discontinued the case when Ms. Foster indicated an intention to make a summary judgment motion) -- the Court did, in its decisions granting defendant's motion for attorneys fees, find the RIAA's theory to have been "marginal" and "untested", and its motives in bringing it "questionable".
The RIAA has a practice of making motions to strike counterclaims; if it cannot find a substantive basis for much a motion, it will seek to strike it on technical grounds, such as redundancy. Since motions to strike for redundancy are disfavored in modern federal practice, these motions have met with mixed success.
COUNTERCLAIMS FOR ATTORNEYS FEES
If a defendant counterclaims for attorneys fees, the RIAA will likely move to dismiss such a counterclaim, arguing that it is redundant since a successful defendant does not need to have interposed a counterclaim in order to collect attorneys fees. It plans to make a motion to strike the counterclaim in Elektra v. Schwartz, Elektra v. Torres, and Maverick v. Chowdhury, all in Brooklyn. A similar motion by the RIAA in Oregon in 2005, in Elektra v. Perez, was denied. The RIAA has not been able to cite any legal authority for its argument.
COUNTERCLAIMS FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT
The RIAA also moves to strike counterclaims for a declaratory judgment of non-infringement, arguing that they are redundant because a judgment dismissing the plaintiffs' case would imply non-infringement. Such motions were denied in Capitol v. Foster and Warner v. Stubbs in Oklahoma, Atlantic v. Shutovsky in Manhattan, and in Lava v. Amurao, in White Plains, New York, and granted in Interscope v. Duty in Arizona and Atlantic v. DeMassi in Houston, Texas. The Electronic Frontier Foundation had submitted an amicus curiae brief, in opposition to the RIAA's motion, in Amurao.
The issue is also before the Court in SONY v. Crain in Beaumont, Texas, where the defendant -- an elderly Hurricane Rita survivor who never engaged in any file sharing, and who is defended by Legal Aid -- interposed a counterclaim for a declaratory judgment, and the RIAA moved to strike it. Ms. Crain's attorneys have pointed out to the judge that (a) the RIAA's similar motion, made in Capitol v. Foster, was denied, (b) the RIAA has no legal authority for its position, and (c) it is necessary to have the counterclaim because of the RIAA's practice of discontinuing the cases before trial, thereby depriving a defendant of the right to be vindicated on the merits. Similar motions are being litigated in Atlantic v. Boggs in Corpus Christi, Texas, and Arista v. Finkelstein in Brooklyn, New York, and elsewhere.
The decision in Warner v. Stubbs, in Oklahoma, is pivotal, and should be cited by practitioners representing defendants on this issue. The defendant there interposed a declaratory judgment counterclaim, specifically reciting in the counterclaim that a reason for its necessity was plaintiffs' tendency to bring frivolous case and then withdraw them leaving defendant with no opportunity for a day in court. As if on cue, the RIAA moved to dismiss its own case and the counterclaim. The court dismissed the RIAA's case, but declined to dismiss the counterclaim, since it had an independent jurisdictional basis. All practitioners representing innocent defendants should take heed of Stubbs and be careful to interpose a counterclaim for declaratory judgment fashioned along the lines of the Stubbs counterclaim.
In Atlantic v. Andersen, in Oregon, a number of counterclaims for tortious conduct under Oregon law, including violations of computer privacy, and Oregon RICO, have been interposed, and their sufficiency is presently being litigated. In Elektra v. Santangelo II, in White Plains, New York, a counterclaim has been interposed for breach of the duty to warn.
In Lava v. Amurao, in White Plains, NY, Atlantic v. Shutovsky in Manhattan, and Atlantic v. DeMassi in Houston, Texas, "copyright misuse" was interposed as a counterclaim, alleging that the plaintiff record companies are "competitors in the business of recorded music.....[and] are a cartel acting collusively in violation of the antitrust laws and public policy, by litigating and settling all cases similar to this one together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in an identical manner and through common lawyers..... Such actions represent an attempt....to secure for themselves rights far exceeding those provided by copyright laws......Such acts constitute misuse of copyrights, and lead to a forfeiture of the exclusive rights.....". The RIAA's motions to dismiss the copyright misuse counterclaims, partly on Noerr-Pennington grounds, were denied in Amurao and Shutovsky, and granted in Atlantic v. DeMassi. No written decision was written in connection with any of the 3 rulings.
In Maverick v. Chowdhury and Elektra v. Torres, both in Brooklyn, similar copyright misuse counterclaims, and an antitrust claim -- based upon collusive settlement negotiation practices -- have been interposed, and the RIAA has indicated an intention to seek their dismissal.
In South Carolina, in Atlantic v. Njuguna, counterclaims have been interposed for (a) negligence and (b) deceptive trade practices under South Carolina's Unfair Trade Practices Act.
In cases where the sufficiency of the complaint is not being challenged, or has been accepted by the court, the RIAA serves a number of pretrial discovery requests, calling for examination of the hard drive and numerous other items. In some cases defendants' practitioners have fought back, demanding (1) protective orders against the RIAA's invasive and humiliating demands, and (2) discovery of their own. (See, e.g. UMG . Heard, SONY v. Arellanes, and UMG v. Lindor.)
There have been interesting discovery rulings in Elektra v. Santangelo in White Plains, Atlantic v. Andersen in Oregon, Motown v. Nelson in Michigan, and in UMG v. Lindor.
SELECTIVE PRETRIAL DISCOVERY RULINGS OR MOTIONS WHICH MAY BE HELPFUL TO DEFENDANTS' ATTORNEYS:
DEFENDANT'S HARD DRIVE
*Procedure for hard drive examination: mirror image made, turned over to mutually acceptable computer forensic expert, who prepares 2 verified bit images, and creates an MD5 or equivalent hash code. Expert keeps 1 mirror image in escrow, gives other to defendant's lawyer for a 'privilege review'. Defendant's lawyer provides plaintiffs' lawyer with a "privilege log". After privilege questions resolved, escrowed image -- with privileged files deleted -- turned over to RIAA lawyers, to be held for 'lawyers' eyes only'. (SONY v. Arellanes)
NON-PARTY'S HARD DRIVE
*Plaintiffs held not entitled to compel defendant's son, who did not reside with defendant, to produce his desktop computer, but may take limited deposition of the son as to whether he had any portable devices which he'd brought to his mother's house at the time of the screen shot. (UMG v. Lindor).
*Plaintiffs held by Magistrate to be entitled to order directing alternate manner of service for production of hard drives of a nephew, where their process server was unable to effect personal service. Over the objection of defendant, Magistrate Levy stated that "plaintiffs' claims are reasonably calculated to lead to the discovery of admissible evidence relating to the claims and defenses in this action". (UMG v. Lindor)
RECORD COMPANY COLLUSION/COPYRIGHT MISUSE
*The judge in Atlantic v. Shutovsky held that defendant is entitled to discovery on this issue. The Magistrate in UMG v. Lindor held that the defendant is not entitled to discovery on this issue.
DEPOSITIONS-CONFIDENTIALITY OF TRANSCRIPTS
*Record companies can't have a blanket advance confidentiality order for their deposition transcripts, but will have to move for a protective order as to sections they want to keep confidential. (UMG v. Lindor).
DEPOSITIONS-CONDUCT OF DEPOSITIONS
*If plaintiff being deposed by video conference, plaintiff's lawyer can't be in room with witness but must also appear by video conference; or in alternative RIAA must reimburse defendant's lawyer's travel expenses up to $500. (UMG v. Lindor).
RECORD COMPANY USE OF P2P
*On July 25, 2006, at a conference in UMG v. Lindor, Magistrate Robert M. Levy ordered the record companies to produce evidence, if any, relating to their employees' use of p2p file sharing to send music files to radio stations. The order was not reduced to writing, and subsequently -- when Ms. Lindor sought to enforce the order -- the Magistrate accepted the RIAA's response that the companies themselves had no policy of using p2p file sharing, and did not require them to disclose their employees' use of p2p. No explanation for the change was given other than that it was based upon the RIAA's opposition papers and upon the Magistrate's prior rulings.(UMG v. Lindor)
CONFIDENTIALITY OF MEDIASENTRY AGREEMENTS
*RIAA argued attorney client privilege, work product privilege, and confidentiality, in protective order motion in UMG v. Lindor. The Magistrate made no findings on either privilege or on confidentiality, but ruled that the agreements -- which were being sought for crossexamination of MediaSentry -- were not relevant and granted the protective order. Defendant has filed objections to the Magistrate's order, seeking a ruling from District Judge Trager.
WHOLESALE PRICES OF DOWNLOADS
*Defendant is entitled to "all relevant documents" and a deposition relating to the record companies' pricing of legal downloads, in connection with her affirmative defense challenging the constitutionality of the RIAA's damages theory. (UMG v. Lindor).
*RIAA ordered to produce 'chain of title' documents for any copyrights as to which the name of the plaintiff is not the name on the copyright registration, or as to which there has ever been any dispute of copyright ownership. (UMG v. Lindor)
DEFENDANT'S DISCOVERY INTO HARD DRIVE ANALYSIS.
*Defendant can take pretrial discovery into the plaintiffs' analysis of the hard drive, including contention interrogatories and depositions. (UMG v. Lindor).
PRECLUSION AS TO SONG FILES
*RIAA precluded from using any song files not produced in response to document request (UMG v. Lindor).
PRECLUSION AS TO DAMAGES
*In view of failure to set forth actual damages in response to interrogatory, plaintiffs precluded from introducing evidence of damages. (UMG v. Lindor).
*Discovery cutoff extended to 60 days after RIAA turns over hard drive expert's report to defendant. (UMG v. Lindor).
*In Atlantic v. Andersen, where the plaintiffs' hard drive expert had examined a mirror image, the Court ordered the RIAA to provide a detailed expert witnesss report regarding the hard drive inspection, including the expert's identity, qualifications, methodology, investigation chronology, notes, records, raw data, and informed opinion and conclusions of the investigation.
*In UMG v. Lindor, in an attempt to stave off discovery into its communications and agreements with MediaSentry, the RIAA argued that MediaSentry's investigator Tom Mizzone is not an expert but merely a paid fact witness, and that what he did to "investigate" did not require any expertise, but was what any other Kazaa user could have done. They said that at trial he would not testify to any conclusions about infringement, but would merely recite what he did, and that Dr. Doug Jacobson would be the only expert, and the one to connect the dots. Ms. Lindor's attorney disputes that argument. See, e.g., USA v. Ganier, 468 F.3d 920, 925-926 (6th Cir. Nov. 15, 2006). Meanwhile, Ms. Lindor's attorneys conducted a deposition of Dr. Jacobson on February 23, 2007. The transcript is available online. Likewise the transcript of the November 30th oral argument, at which the RIAA took the position that MediaSentry could not testify to any opinions or conclusions, is available online. Ms. Lindor has now moved for in limine exclusion of Dr. Jacobson's testimony at trial, based upon his failure to satisfy the Daubert "reliability" factors.
ATTORNEYS FEE REASONABLENESS
In Capitol v. Foster, where the Court has ruled that defendant is entitled to her reasonable attorneys fees, the RIAA made the unusual request -- which the Court granted -- to be permitted discovery into the "reasonableness" of the defendant's attorneys fees. In doing so, however, they opened the door for the defendant to request plaintiffs' attorneys' billing records, which request the Court granted as well. The Court set a strict 60-day time limit on the "reasonableness" discovery, and declined several attempts by the RIAA to extend it. The Court granted the RIAA's request to keep its legal bills confidential, although it is unclear what legal basis, if any, there was for the request.
The RIAA has not tried to prove its actual damages, and has been seeking $750 per song in statutory damages.
This damages theory is being challenged on constitutional grounds in UMG v. Lindor, Maverick v. Goldshteyn, and Elektra v. Schwartz, all in Brooklyn federal court, as well as in Arista v. Greubel and SONY v. Crain in Texas, Virgin v. Morgan in Pensacola, Florida, Interscope v. Korb in Charleston, South Carolina, and others. In Lindor, in the context of a motion for leave to amend the answer, Judge Trager ruled that Marie Lindor's assertion of the defense of unconstitutionality was not frivolous, and noted that while the RIAA could point to no legal authority contrary to its validity, Ms. Lindor had cited both caselaw and law review articles supporting its viability. For an excellent 2004 law review article on the subject, see "Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement" By J. Cam Barker, 83 Texas L. Rev. 525 (2004)[Copyright Texas Law Review Association 2004][Reprinted with permission]*. Since the Lindor decision, every new answer we have seen filed interposes this defense.
In Virgin v. Morgan the defendant is also challenging the RIAA's damages theory on statutory grounds, based on Section 504(c)(2) of the Copyright Act, which permits the statutory damages to be reduced from $750 to $200 in certain instances of innocent infringement. But see BMG v. Gonzalez, where the Seventh Circuit held that defendant could not avail herself of the 504(c)(2) defense because of the copyright notices on plaintiffs' CD's, even though she hadn't seen the CD's, since she "readily could have learned, had she inquired, that the music was under copyright". (Ed. note: The illogic of Gonzalez cries out for a comment here. I feel that Gonzalez contradicts the plain language, as well as the obvious intent, of the copyright Act, and is inconsistent with the whole principle of copyright notice which permeates the Act. Obviously anyone could "readily" learn, by inquiring, as to the copyright of anything, since copyright registrations are publicly filed in Washington, DC, but the law imposes no such duty. But the decision is from a court of appeals, and therefore has to be taken seriously by practitioners, even those outside of the Seventh Circuit. Hopefully the Seventh Circuit will come to realize its error, and/or other circuit courts will conclude otherwise, and/or the Supreme Court will catch up to this issue.)
In some cases where the RIAA discontinued the case, the defendant has sought attorneys fees. In Priority Records v. Chan and Elektra v. Perez the defendant's motion was denied. In Capitol Records v. Foster, the motion was granted. As of this writing the amount of attorneys fees to be awarded Ms. Foster has not yet been determined, but the initial amount sought was approximately $55,000, and the judge has ruled that Ms. Foster may supplement her application to include subsequent fees. The judge has ruled that the RIAA may have 60 days of discovery on the reasonableness of the fees, and that Ms. Foster can supplement her request for fees after discovery ends. The RIAA has moved for "reconsideration" of the attorneys fees motion. It has also asked the judge to amend his scheduling order so that Ms. Foster could not supplement her fee request after the close of discovery, presumably to avoid the judge's awarding attorneys fees for Ms. Foster's attorney's work in connection with 'discovery'. The judge denied that request. Although it was the RIAA which sought "discovery" on the attorneys fees issue, it has refused to comply with Ms. Foster's attorney's request for production of the RIAA's attorneys' billing records, a request that has been outstanding since March, 2006. (We cannot help but note that the judge in Capitol v. Foster appears to have bent over backwards to accommodate the RIAA, allowing its very unusual request for "discovery" on the reasonableness of the fees; these matters are usually resolved by submitting copies of the itemized bills. The judge's graciousness to the RIAA appears not to have been repaid in kind, as the RIAA (a) asked the judge to reverse his ruling altogether, (b) asked the judge to change his scheduling order so that Ms. Foster would be incapable of being reimbursed for her fees in this new 'discovery' phase, and (c) acted with ill grace in demanding discovery at the same time that it is refusing to permit Ms. Foster to have discovery.) In any event, the Court ordered the RIAA to turn over all its own attorneys' billing records, and to provide expert witness disclosures, and an expert witness deposition, prior to the close of the 60-day discovery cutoff. The Court denied the RIAA's "reconsideration" motion, in a decision which reads like a treatise on the importance of attorneys fee awards to prevailing defendants in copyright infringement cases, and which reiterated the "untested and marginal" nature of the RIAA's claim, found the RIAA's motives in pressing it "questionable", labeled one of the RIAA's arguments "disingenuous", and found its statement of the facts to be "not true".
In Priority Records v. Candy Chan, a Michigan case, the RIAA initially refused to withdraw the case against a mother who clearly had not herself engaged in file sharing, but then changed its mind and did discontinue the case when faced with the mother's motion for summary judgment and attorneys fees.
A scenario similar to that in Priority v. Candy Chan occurred in Capitol v. Foster, in Oklahoma, where the RIAA withdrew only when faced with the mother's motion for summary judgment and attorneys fees. The judge let the RIAA drop its case, but held that the 'voluntary' withdrawal did not make the RIAA immune from legal fees, and indicated that he may award the mother her attorneys fees. Ms. Foster has made a motion for attorneys fees, and was supported in her motion by an amicus curiae brief submitted by the American Civil Liberties Union, the Electronic Frontier Foundation, the American Association of Law Libraries, Public Citizen, and the ACLU Foundation of Oklahoma. In their brief the 'friends of the court' told the judge that "the RIAA has wrought havoc in the lives of many innocent Americans" and that an award of attorneys fees is necessary to deter such conduct in the future. Meanwhile the RIAA has asked the judge not to accept the amicus brief.
In another Oklahoma City case, Warner v. Stubbs, the defendant -- represented by the same lawyer who represented Debbie Foster -- filed an answer and counterclaim saying that the RIAA's tactics amounted to extortion. The very next day the RIAA moved to withdraw its case. The motion to dismiss without prejudice was granted. Immediately thereafter the RIAA tendered a unilateral "covenant not to sue" in an attempt to stave off a declaratory judgment -- on Ms. Stubbs's counterclaim -- of noninfringement.
In Virgin Records v. Tammie Marson, the RIAA voluntarily dismissed its case when confronted with the impossibility of determining who used defendant's computer, and in Warner v. Maravilla it voluntarily dismissed -- after defendant had made a dismissal motion -- upon learning that the ISP had given them the wrong name. Both Marson and Maravilla were in the Central District of California.
A Georgia case, Atlantic v. Zuleta, in which defendant had a wireless router, the IP address was connected to a wireless router, and the defendant's roommate's first name was the same as the screen name, the case was discontinued "without prejudice".
Elektra v. Wilke, in Chicago, was withdrawn after Mr. Wilke made a summary judgment motion. See Summary Judgment below. A second, similar discontinuance took place 6 months later in Chicago in BMG v. Thao.
The RIAA is attempting to withdraw one of the most highly publicized of the RIAA v. Consumer cases, Elektra v. Santangelo, after two years of litigation, as it moves on to pursue two of Ms. Santangelo's children. The RIAA would have liked the dismissal to be "without prejudice", so that it would not be liable for attorneys fees. (See Capitol v. Foster July 13, 2006, Order). Ms. Santangelo, of course, did not agree with that approach; neither did Judge McMahon. She ruled that the RIAA must proceed to trial unless a stipulation of discontinuance with prejudice is filed by April 1st.
Voluntary discontinuances have taken place in Michigan in Warner v. Pidgeon and in Washington in Interscope v. Leadbetter. In Leadbetter the RIAA tried to discontinue against the defendant but add her fiance as a defendant; the Court denied permission to add the fiance as a defendant, dismissed the case in its entirety, and indicated that it would consider the imposition of attorneys fees against the RIAA in a separate motion.
After receiving a lengthy letter from defendant's counsel in SONY v. Merchant, a Sacramento, California, case, describing the paucity of the RIAA's evidence and threatening a malicious prosecution lawsuit, the RIAA within hours filed a notice of voluntary dismissal.
Suits against children.
In Priority Records v. Brittany Chan, the litigation against Candy Chan's 14 year old daughter (See Voluntary discontinuance above), who allegedly engaged in file sharing when she was 13, the judge had held that the RIAA could not sue a child without getting a guardian ad litem appointed. The RIAA made a motion to have a guardian ad litem appointed so that its case might proceed against the minor, but the Judge rejected the motion because it did not ensure payment of the guardian ad litem's fees. The judge thereafter dismissed the case when the RIAA ignored his instruction to submit a plan that would ensure payment of the guardian ad litem's fees.
Continuing its policy of bringing lawsuits against children, on November 1, 2006, the RIAA commenced suit against two of Patti Santangelo's children, one of whom is only 16 years old. Elektra v. Santangelo II. Although a discovery schedule and an answer and counterclaims have been filed, it remains to be seen whether these -- and the commencement of the underlying lawsuit -- are enforceable or are nullities in view of the absence of a guardian ad litem.
It sought to compel a face-to-face deposition of a 10-year-old child in Atlantic v. Andersen. The Judge, however, limited them to a telephonic or videoconference deposition instead. In UMG v. Hightower, it served a deposition subpoena on a high school student, returnable on 24 hours notice. The subpoena was served on the defendant at his high school, and was returnable at 9:00 a.m. of a school day. Shortly thereafter, the RIAA abruptly dropped the case altogether.
Suits against the disabled.
In Atlantic v. Andersen, Elektra v. Schwartz, and other cases, the RIAA has brought suit against disabled people, even knowing that they are disabled. In both Schwartz and Andersen the disabled defendants are people who have never downloaded songs or engaged in file sharing at all. In Elektra v. Schwartz, the defendant has severe Multiple Sclerosis, and gets around in an electric skooter. Her lawyer specifically asked the RIAA to drop the case; it declined. Thereafter a motion for appointment of a guardian ad litem was requested. Magistrate Levy granted Ms. Schwartz's motion, and appointed a guardian ad litem.
In Warner v. Paladuk in Michigan the RIAA sued a totally disabled stroke victim who was living in Florida at the time of the alleged infringement in Michigan.
Death of defendant.
In a Michigan case, Warner v. Scantlebury, after learning that the defendant died, the RIAA asked the Court for a 60-day stay to allow the family to "grieve", after which it said it intends to take depositions of the decedent's children. We have received unconfirmed reports that after a firestorm of controversy erupted over the internet, the RIAA now intends to withdraw the case against the deceased.
In an Illinois case where the defendant admitted to downloading 30 songs without authorization, the plaintiffs' summary judgment motion was granted. BMG v. Gonzalez. In an Alabama case where the defendant did not admit to personally having copied or distributed plaintiffs' song files, the RIAA's summary judgment motion was denied. Motown v. Liggins. (Interestingly, Mr. Liggins appeared pro se.)
In Interscope v. Leadbetter, the RIAA's summary judgment motion against the original defendant's son is presently being briefed, as is the son's cross-motion for summary judgment dismissing the case.
As to defendant's summary judgment motions in general, we do not yet know how they will fare in the courts.
In August, 2006, a motion for summary judgment was made by the defendant, in Chicago, in Warner v. Wilke. The plaintiffs' initial response was to make a motion for expedited pretrial discovery, indicating to the Judge that, without it, they do not have enough evidence with which to oppose Mr. Wilke's motion. Thereafter, however, they dropped the case altogether, "with prejudice" (meaning they cannot sue again).
In Brooklyn, where all RIAA v. Consumer cases are assumed to be "related" and assigned to Judge Trager, the judge appears to have a policy of discouraging defendants' summary judgment motions until after the close of discovery. In February, 2006, Marie Lindor wrote a letter to Judge Trager asking for a premotion conference in connection with her planned summary judgment motion in UMG v. Lindor; the judge, however, referred the case to the Magistrate for pretrial discovery prior to summary judgment motion practice. After submitting to a deposition, and to an inspection of the hard drive of the computer in her apartment, after answering all of the RIAA's written discovery demands, and after arranging for her adult son and daughter to testify voluntarily at their depositions, she again wrote to the Judge renewing her request for a summary judgment pre-motion conference and for a stay of discovery during the pendency of the motion. Judge Trager again said she couldn't make the motion, and wanted her to wait until after the completion of discovery. Judge Trager reacted similarly to Rae J Schwartz's request for summary judgment in Elektra v. Schwartz, issuing a formal order indicating that he thought such a motion to be premature.
We are anxious to hear the results of defendant's summary judgments in other districts, where summary judgment motions are permitted to be made in the ordinary course.
The dismissal motion in Elektra v. Dennis in Mississippi was accompanied by an affidavit of the defendant and alternatively sought summary judgment.
Both sides' summary judgment motions were denied in the Philadelphia pro se case, Motown v. DePietro.
Settlement during litigation.
Settlements during the course of a litigation are not dissimilar to those prior to litigation. The RIAA seeks a larger amount, typically $4500 plus $375 court costs, nonnegotiable, and submits a form of settlement which is likewise nonnegotiable. It is difficult to obtain information on this process since most settlement discussions are confidential.
The judgment in Motown v. Lisberg, a California case, is an example of the RIAA's non-negotiable "settlement".
In Capitol v. Foster, due to a waiver of confidentiality, there is some insight available into the process. There the RIAA was willing to make a payment of attorneys fees to Ms. Foster, but in an amount that was far less than she had incurred. The parties never reached agreement on the amount, and the matter of attorneys fees is being considered by the judge. One might speculate that there may have been settlements in which the RIAA withdrew its case and paid the defendant attorneys fees, but the RIAA would no doubt have insisted upon confidentiality of such a settlement, and so we would never know about it.
We are aware of the RIAA's claim that it accepts reduced amounts in "hardship" cases, however we have not confirmed the existence of any instance of them ever having accepted a reduced amount.
Cases which are in litigation are under the aegis of a Magistrate Judge or District Court Judge, so it is always possible that the Court will become involved in the settlement process. In Maverick v. Goldshteyn, the Magistrate Judge, at the request of Ms. Goldshteyn, scheduled a settlement conference, at which the principals were required to attend, in person, and with settlement authority. However, at the actual conference, a single attorney from the RIAA was accepted by the judge as an appropriate "principal" of all of the plaintiffs. A stipulation and order of settlement has been entered, and is available online.
The RIAA has taken the position, in UMG v. Lindor, that MediaSentry's investigator is not an expert witness. Defendant disagreed with that contention. See USA v. Ganier, 468 F.3d 920, 925-926 (6th Cir. Nov. 15, 2006). The Magistrate, in his order, never ruled on that question one way or the other.
According to the RIAA, its only expert witness is a Dr. Doug Jacobson, an associate professor at Iowa State University, who is also the founder and a co-owner of Palisade Systems, a company that sells antipiracy software. The RIAA indicated, at oral argument on November 30, 2006, that MediaSentry will not testify to any opinions or conclusions about copyright infringement, but will only testify as to the steps it took, and that it will fall upon Dr. Jacobson to testify as to what MediaSentry's investigation actually meant.
Dr. Jacobson appears to be a dual-purpose expert, claiming to be qualified in both forensic and in internet issues. His deposition was taken in UMG v. Lindor on February 23, 2007, and the transcript and exhibits are available online, as is the transcript of the November 30th argument.
Ms. Lindor's attorneys have made a motion to exclude Dr. Jacobson's testimony, based upon its inadmissibility under the Daubert case and Fed. R. Evid. 702.
We do not have information on any trials, although it would seem that there must have been some, especially in cases where the defendants are representing themselves, without legal counsel. If anyone has information on any trials, and the results, please let us know. If the RIAA has had any trials, and lost, they're not going to tell me about it.
A bit of guidance as to the standards for trial has come down in UMG v. Lindor, in connection with a preclusion motion, where the Court held that "[a]t trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff�s copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs."
Likewise, the denial of summary judgment in the abovementioned Motown v. Liggins suggests that the plaintiff would have to prove actual copying or actual "distribution".
In both cases, it is not clear whether the judges have at this point considered that (a) there are certain types of file "sharing" which would not constitute copyright infringement, or (b) "distribution" is a defined term under the Copyright Act, one which requires a sale, transfer of ownership, lending, lease, or rental, of a phonorecord or other copy, to "the public".