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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 cases.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 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.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. 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.).Once the 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".This process has recently come under attack in 3 cases in Manhattan federal court: 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 have been 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.Settlement phaseAfter 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.Litigations against named defendantsIf 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).No details as to how, when, or where the alleged "infringement" took place.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 on constitutional grounds in UMG v. Lindor, in Brooklyn federal court, where Ms. Lindor has requested a pre-motion conference in anticipating of a motion to add unconstitutionality as a defense, and for partial summary judgment limiting plaintiffs' damages.There have been several challenges to the sufficiency of the boilerplate complaint, in the form of a motion to dismiss complaint, 2 in Texas, 1 in Minnesota, 1 in Arizona, and 3 in New York; my firm has been involved in the 3 New York motions.In Elektra v. Santangelo, in Westchester, the motion was denied.A pretty stunning result occurred in Interscope v. Duty, in Arizona. In my experience I've never seen anything like it. 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.
The Recording Industry Association of America (RIAA) is waging a "reign of terror" against "defenseless people" in its efforts to prosecute people for illegal music downloads. So says Ray Beckerman, a lawyer with the Electronic Frontier Foundation (EFF) and the law firm of Vandenberg & Feliu in New York. Best known for his Recording Industry vs the People blog, Beckerman made the comment during a conference call yesterday organized by the Defective By Design campaign. During the call, whose purpose was to raise awareness and to create a defence fund against the RIAA, Beckerman described what he alleges are the typical tactics used by the RIAA in suing individuals in the United States and other countries, and two of the cases that might become landmarks in the struggles against the RIAA's actions.According to Beckerman, the RIAA has brought 19,000 cases against private individuals. "You have a multi-billion-dollar cartel suing all sorts of people who have no resources whatsoever to withstand these litigations," Beckerman says. His concern is that "due to the adversarial nature of justice, the RIAA will be successful in rewriting copyright law," particularly if the technological community does not resist.
