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RIAA Defense Attorneys

Anonymous — Thu, 24 Jan 2008 15:44:46 CST

TEXAS

Law Office of Justin Copeland

1307 Nueces

Austin, TX 78701

T: 512-565-7012

F: 512-722-7755

jcopeland@jcopelandlaw.com

www.jcopelandlaw.com

Home

Anonymous — Thu, 24 Jan 2008 15:42:25 CST

Welcome to the new RIAA Defense Network, a collaborative effort to supply legal practitioners with helpful tools to defend their clients from lawsuits brought by the RIAA.

Disclaimer: The RIAA Defense Network is not meant to be a substitute for appropriate legal counsel and its creators and contributors will not be held responsible for any consequences of its use. Its purpose is to merely serve as a practitioner's tool to complement the normal efforts made by duly licensed attorneys.

This page is dedicated to thwarting the efforts of the RIAA by empowering attorneys around the country with a robust knowledge base and legal techniques based upon experience and live collaboration. The RIAA has initiated a large number of lawsuits and gained experience from each one of these suits. The purpose of the RIAA Defense Network is to unite defendants in opposition of a common adversary in an attempt to place them on equal footing with the RIAA.

Sections:

Summary Judgement

Anonymous — Wed, 26 Sep 2007 21:05:08 CDT

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 (Electra 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.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

University Obligation to Reveal the Identity of Students

Salvatore.DiCampo — Sun, 06 May 2007 14:04:40 CDT

So far, the RIAA has targeted over 14,000 students by sending copyright infringement notices to universities around the country. Along with the notices of infringement, the RIAA includes an option for early settlement in lieu of litigation. The RIAA sends these notices to the Universities instead of the specific students themselves because the only identifying information the RIAA has about the suspected infringers are their IP addresses. When an IP search is performed on the address, the only information that is returned is the internet address of the university that provided the students with the internet access. The only possible entity that could link the IP address with the individual student is the university. However, they have yet to be issued a subpoena for any of the information. In essence, the RIAA has been enlisting the universities as copyright watchdogs by asking them to forward the settlement offers to the individual students. Not all universities have complied with the wishes of the RIAA. Some notable universities are:

Purdue University
"The school almost never even notifies the students of copyright infringement." Article

University of Wisconsin
"The University of Wisconsin-Madison has responded to the RIAA's latest salvo in its campaign against on-campus file sharing by informing the record labels that they will not pass on individual settlement letters without a subpoena." Article

University of North Carolina
Though they did forward the settlement offers to their students, "the university's Student Legal Services department has been advising students to continue pushing back, all the way to federal court." Article

University of North Dakota
The university returned the settlement offers back to the RIAA citing their policy of deleting IP records of the students after 30 days. Thus, it is impossible for the university to identify the infringing users. Article

May 6, 2007

Attorney's Fees

j.asano — Fri, 04 May 2007 17:20:47 CDT

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) is asking 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) is acting 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.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Article from Ars Technica in response to Capitol Records v. Debbie Foster

Update: May 4, 2007
The judge in Capitol Records v Foster has denied the RIAA request to reconsider the award of attorney's fees. Additionally, the RIAA was forced to turn over their own billing records to Foster's attorneys. However, in an attempt to not let public knowledge of billing records affect other RIAA cases, the judge agreed to place the documents on a confidential protective order. See Ars Technica.

Links

j.asano — Sat, 28 Apr 2007 16:21:24 CDT

Recording Industry vs The People

Electronic Frontier Foundation

Enemy of the State

P2p Lawsuits Sucks

Trial

j.asano — Mon, 16 Apr 2007 15:05:32 CDT

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".

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Expert Testimony

j.asano — Mon, 16 Apr 2007 15:03:48 CDT

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.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Settlement During Litigation

j.asano — Mon, 16 Apr 2007 15:02:43 CDT

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.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Death of Defendant

j.asano — Mon, 16 Apr 2007 14:59:55 CDT

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.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Suits Against the Disabled

j.asano — Mon, 16 Apr 2007 14:59:11 CDT

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. At this point the proceedings are stayed while Magistrate Robert M. Levy considers Ms. Schwartz's motion for the appointment of a guardian ad litem to protect her interests.

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.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Suits Against Children

j.asano — Mon, 16 Apr 2007 14:57:48 CDT

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.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Voluntary Discontinuance

j.asano — Mon, 16 Apr 2007 14:56:07 CDT

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.

n 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.

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.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Damages

j.asano — Mon, 16 Apr 2007 14:53:37 CDT

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.)

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Pretrial Discovery

j.asano — Mon, 16 Apr 2007 14:49:40 CDT

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
*Plaintiffs may not have access to the defendant's hard drive; the hard drive must be turned over to a mutually acceptable neutral computer forensics expert; and his report must be done at the RIAA's expense. (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).

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).

COPYRIGHT DOCUMENTS.
*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
*Discovery cutoff extended to 60 days after RIAA turns over hard drive expert's report to defendant. (UMG v. Lindor).

EXPERT WITNESSES
*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.

Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Counterclaims

j.asano — Mon, 16 Apr 2007 14:46:54 CDT

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. 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, and granted in Interscope v. Duty in Arizona. Such a motion was denied without prejudice in Atlantic v. Shutovsky in New York City. A similar motion is being made in Brooklyn in Arista v. Finkelstein.

The issue has now arisen again in SONY v. Crain in 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 Lava v. Amurao in Manhattan, Atlantic v. Boggs in Corpus Christi, Texas, and Arista v. Finkelstein in Brooklyn, New York.
The decision in Warner v. Stubbs, in Oklahoma, is pivotal. 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.

OTHER COUNTERCLAIMS

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. 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, a "copyright misuse" counterclaim has been interposed.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Challenges to Sufficiency of Complaint

j.asano — Mon, 16 Apr 2007 14:42:59 CDT

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.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Pro Se Representation

j.asano — Mon, 16 Apr 2007 14:38:19 CDT

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.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Default

j.asano — Mon, 16 Apr 2007 14:36:06 CDT

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.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.

Commencement of Action

j.asano — Mon, 16 Apr 2007 14:30:52 CDT

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.

*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.