Ex parte discovery cases
College version of the procedure
Legal challenges to ex parte discovery procedure
Litigations against named defendants
Commencement of action
Pro Se representation
Challenges to sufficiency of complaint
Defenses to counterclaims
Suits against children
Suits against the disabled
Death of defendant
Offer of judgment
Settlement during litigation
Litigations against RIAA
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 one 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.
And we are aware of another instance in which the application was rejected on its merits, based on the Court's observation that there was no legal basis for the discovery at all. In Interscope v. Does 1-7, an ex parte proceeding in the Eastern District of Virginia, in Newport News, Virginia, in a 5-page decision by Judge Walter D. Kelley, Jr., the Court denied the RIAA's ex parte motion for an order granting discovery into the identities of students at the College of William & Mary.
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".
In what we suppose was a "testing of the waters", 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.
LaFace v. Does 1-38.
The first challenge of which we are aware that has been made by a college or university itself, rather than by the affected students, is Arista v. Does 1-17, where the Oregon Attorney General has filed a motion to quash the RIAA's subpoena directed to the University of Oregon, seeking student identities. The motion argues that the RIAA's identification evidence is flawed, so that the University could not respond to the subpoena without either violating privacy laws by divulging private information about students who are not shown to have committed any copyright infringement, or by conducting an elaborate investigation on the RIAA's behalf. The motion papers further argue that the discovery which plaintiffs seek is not obtainable at all under the procedures employed by the RIAA to obtain it, citing Interscope v. Does 1-7, 494 F. Supp. 2d 388 (E.D. Va. 2007).
Legal challenges to ex parte discovery procedure.
The ex parte discovery process is being challenged in the Boston University case, 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. Notably, one of the expert witnesses who submitted a declaration in support of the students' motion, attacking the RIAA's evidentiary averments, was no less than the Chairman of the university's Computer Science Department.
In the Oklahoma State University case, Arista v. Does 1-11, the students -- represented by the same attorney who obtained a $68,000-plus attorneys fee award against the RIAA in Capitol v. Foster -- submitted a lengthy, detailed, scathing declaration of a computer security and forensics expert who challenged most of the key elements in the RIAA's entire 'investigative' strategy. The OSU students also pointed out to the Court that the RIAA's joinder of eleven (11) John Does in a single case was in direct violation of the November 2004 order in Fonovisa v. Does 1-41.
In Tampa, Florida, in Interscope v. Does 1-40, the students have sought both to dismiss the case for improper joinder under the Fonovisa v. Does 1-41 case and other caselaw, and to quash the subpoena based on the absence of any sufficient showing that ex parte relief was warranted.
Even without a challenge, as noted above, 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".
The ISP ex parte 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. The RIAA has indicated an interest in commencing ex parte discovery proceedings against the family of Rae J Schwartz, the Queens woman suffering from MS who is being sued in Brooklyn in Elektra v. Schwartz.
As noted above 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.
In Interscope v. Rodriguez, noted above, in the context of an application for default judgment the Judge sua sponte dismissed the RIAA's standard complaint for failure to state a claim. Interestingly, when the RIAA filed an amended complaint six days later, the "making available" allegation was nowhere to be found.
We are advised that new complaints being filed by the RIAA have jettisoned the "making available" altogether. If that is the case it is altogether possible that "making available" may die with a whimper rather than a bang.
A motion to dismiss has been fully briefed in Warner v. Cassin in Westchester, and is awaiting argument or decision.
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. Similarly in Atlantic v. Howell, another pro se case, the judge held that 'making available' is actionable, but likely without having received full briefing on the state of the law.
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".
UMG v. Del Cid, above, where the Court explicitly rejected the defense as being inapplicable to "sham ligitation".
Atlantic v. Andersen in Oregon, Motown v. Nelson in Michigan, and in UMG v. Lindor.
SELECTIVE PRETRIAL DISCOVERY MATTERS WHICH MAY BE HELPFUL TO DEFENDANTS' ATTORNEYS:
*Plaintiffs will try to avoid producing discovery on their damages, and will offer to stipulate to be precluded from proving their actual damages at trial. However, without such discovery a defendant's lawyer will be hard pressed to place before a jury, in admissible form, evidence to establish the disproportionality of the RIAA's damages theory. The importance of this issue was underscored by the Capitol v. Thomas trial where the RIAA sought $750 to $150,000 per song file, and were awarded $9250, or 30,000 times the actual damage, per file. The defendant's lawyer, not having had discovery on this issue, would have had no way to show the jurors the fact that the actual lost profits per song file was probably in the neighborhood of 35 cents.
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", but did not specify in what respect. (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. Ms. Lindor has asked the Magistrate to revisit that 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). However, this preclusion is of little value to defendant's lawyers who want to establish the disproportionality of the RIAA's statutory damages theory ($750 to $150,000 per song file) to plaintiffs' actual damages (probably in the neighborhood of 35 cents per file or less).
*Where RIAA hadn't produced expert witness report, discovery cutoff extended to 60 days after RIAA turns over 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. An evidentiary hearing was conducted.
RECORDS OF INTERNET SERVICE PROVIDER
*In UMG v. Lindor the RIAA served an extensive subpoena duces tecum on Verizon, the ISP in question, some 4 years after its first subpoena to Verizon. The new subpoena is quite broad and, in addition to logs and other ISP records, asks for copies of the defendant's emails, a request which in some cases would raise grave privacy concerns.
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.)
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 might award the mother her attorneys fees. Ultimately he did, awarding Ms. Foster $68,685.23. Ms. Foster's attorneys fee motion was supported 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.
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. The judge agreed with the RIAA that the "covenant" was a sufficient basis for dismissing the counterclaim.
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 Priority Records v. Brittany Chan, the litigation against Candy Chan's 14 year old daughter (See 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.
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 scooter. 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.
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.
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. The RIAA withdrew its case, however.
Both sides' summary judgment motions were denied in the Philadelphia pro se case, Motown v. DePietro.
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.
Virgin v. Thomas (renamed Capitol v. Thomas), in Duluth, Minnesota, which was tried October 2-4, 2007. The RIAA sought $750 to $150,000 per song file. After being instructed that plaintiffs had no obligation to prove any actual downloading or uploading, the jury found that defendant had wilfully infringed 24 recordings, and awarded $9250 each, for a total verdict of $222,000. We have posted a few documents relating to the case. Many additional documents relating to the trial may be found through PACER. The case is in the District of Minnesota, and the file number is Civ. No. 06-1497 (MJD/RLE).
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".
LAWSUITS AGAINST RIAA.
In Oregon, after the RIAA withdrew it claims against Tanya Andersen with prejudice, Ms.Andersen brought a malicious prosecution suit against the RIAA, the record company plaintiffs, Safenet (MediaSentry), and Settlement Support Center, LLC. She thereafter amended her complaint to convert it into a class action. The RIAA has moved to dismiss.