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In Motown v. Nelson, pending in federal court in Port Huron, Michigan (Eastern District of Michigan, Southern Division), the defendants -- Mr. and Mrs. Nelson -- have made a motion for attorneys fees against the RIAA attorneys, pursuant to 28 U.S.C. 1927 for unreasonable and vexatious litigation and improperly interfering and/or obtaining false testimony from a prospective witness.The Nelsons, represented by attorney John Hermann of Berkley, Michigan, have alleged that:1. Over the past several years many of the major recording labels have attempted to combat the use of peer-to-peer file sharing programs to exchange digital music recordings. 2. Utilizing provisions of the Digital Millennium Copyright Act, the record labels along with their representative trade association (the Recording Industry Association of America hereinafter referred to as the “RIAA”) have filed suit against thousands of “John Doe” defendants seeking to obtain the identity of unnamed individuals whose internet addresses have been identified as being used to download and/or exchange protected music files. 3. However, the RIAA is unable to substantiate whether the owner of the internet address or someone else using their account (i.e. teenage child, household member, or someone else using the individual’s identity) was engaged in the alleged activity since the information obtained only denotes the identity of the account holder.4. The risk of wrongful identification is magnified – and made more probable — by the fact that the companies hired by the record labels are compensated based on the number of internet accounts identified by their search results.5. Over the past several years the potential for abuse of the RIAA’s legal initiatives has caused concern among several internet services providers. On August 11, 2003, the members of Net Coalition (an association of several internet service providers) urged the RIAA to explain what “due diligence” methods it was taking to ensure the accuracy of its information and what compensatory actions were in place for individuals who were wrongfully targeted. Not surprisingly, the RIAA failed to respond to Net Coalition’s request and its lack of investigation into such claims has led to a widespread number of cases where individuals have been wrongfully sued:§ RIAA issued a Section 512(h) subpoena, obtained the identity of an anonymous individual, and filed a federal copyright infringement action seeking damages of up to $150,000.00 per song, based on its belief that the defendant had illegally downloaded over 2,000 copyrighted songs, including the song, “I’m a Thug,” by rapper Trick Daddy. As it turned out, the defendant, Sarah Ward was a 66 year-old grandmother who has never downloaded any songs nor did she own a computer capable of running the file sharing software allegedly used. See C. Gaither, Recording Industry Withdraws Suit, Boston Globe, Sep. 24, 2003 Cl.§ RIAA obtained the identity of a Los Angeles resident through a Section 512(h) subpoena and filed a lawsuit against him seeking millions of dollars in damages from the defendant’s alleged downloading of music. As it turns out, the IP address allegedly used for the downloading is not the defendant’s, and the defendant did not have the file sharing software allegedly used. In addition, the allegedly infringed songs were primarily Spanish language songs; the accused individual did not understand Spanish and did not listen to songs in Spanish. See Men, Group Contends Records Labels Have Wrong Guy, Los Angeles Times, Oct 14, 2003. § Warner Brothers sent out a notice to an ISP that alleged that an illegal copy of the film “Harry Potter and the Sorcerer’s Stone” was being made available on the internet. The notice stated that the requesting party had the belief that copyright infringement had taken place over the ISP’s connection at a specific time, and demanded the that ISP terminate the anonymous users account. As it turned out, the material in question was a child’s book report.§ RIAA sent a notice to Penn State’s Department of Astronomy and Astrophysics, accusing the University of unlawfully distributing songs by the pop singer Usher. In fact, the RIAA mistakenly identified the combination of the word “Usher” – identifying faculty member Peter Usher – and a capella song performed by astronomers about a gamma ray as an instance of copyright infringement. The RIAA blamed a “temporary employee” for the error and admitted that it does not routinely require its “Internet copyright enforcers” to verify whether the infringing material is in fact what is alleged. See McCullah, RIAA Apologizes for Threatening Letter, CNET News, May 12, 2003. § RIAA sent out a cease an desist notice to ISP customer alleging illegal activity on a subscriber’s site devoted to the Commodore Amiga computer stating that the site “offers approximately 0 sound files for download,” which contain copyrighted materials owned by its member companies. See McCullah, RIAA Apologizes for Threatening Letter, CNET News, May 12, 2003 § Priority Records v. Candy Chan Case No. 04-cv-73645-DT U.S. District Court Eastern District of Michigan Southern Division Case No. Several of the major record labels sued Ms. Chan who has no experience or knowledge of computers. Throughout the course of discovery it was established that Ms. Chan (1) did not know how to operate a computer, (2) never heard of a peer-to-peer file sharing program, (3) never used the e-mail address of spicybrwneyedgrl@fileshare associated with the downloading activity, (5) has never downloaded any music recordings. Prior to Defendant filing a Motion for Summary Judgment, Plaintiff voluntarily moved to dismiss their complaint against Ms. Chan.§ RIAA filed a federal copyright infringement action against David Andora seeking damages of up to $150,000.00 per song, based on their claims that he had illegally downloaded hundreds of songs using a file sharing program known as Limewire. As it turned out, Mr. Andora residence was equipped with a wireless internet router which unbeknownst to him enabled anyone within the immediate vicinity to use his internet access including patrons of an internet cyber café in a Boarder’s book store located 100 feet from his home. In addition, the software program and shared files that the RIAA claims were used by Mr. Andora were never on his computer nor were they capable of being operated on his computer equipment. 6. On June 22, 2004, several of the above caption Plaintiffs filed suit against 213 John Doe defendants based allegations of copyright infringement linked to identifiable customer IP addresses maintained by Charter Communications. (Loud Records, L.L.C., et al. v. Does 1-213, United States District Court for the Eastern District of Missouri Case No. 04-04-cv-00769) 7. On June 24, 2004, Plaintiffs sought leave to conduct discovery in order to determine the identity of the account holders for each of the 213 fictitious John Doe defendants. On July 7, 2004, the court entered its order allowing Plaintiffs to conduct immediate discovery and on July 8, 2005, Plaintiff issued a subpoena to Charter Communications seeking to disclose the identity of the 213 Doe defendants. 8. On July 15, 2005, Charter Communications sent Mr. Nelson a notification letter informing him that his internet account had allegedly been used to download and/or exchange copyrighted sound recordings without permission from the copyright owner(s). (Exhibit 1; Charter Communications Letter) 9. The letter urged Mr. Nelson that if he had any questions or wished to discuss this matter in further detail to contact a representative of the record company. (Exhibit 1)10. Immediately thereafter, Mr. Nelson and his wife contacted the number and spoke with a representative of the “Settlement Support Group” (“SSG”) who insisted that Mr. Nelson owed his clients several hundred thousand dollars because their computer was used to download and/or exchange hundred of music files using a peer-to-peer file sharing program registered under the username alex7@KaZaA.11. Mrs. and Mrs. Nelson responded by explaining that (1) Mr. Nelson did not own or know how to operate a computer, (2) neither of them had ever heard of KaZaA or any other peer-to-peer file sharing program, (3) and neither of them had ever downloaded or exchanged any copyrighted music recordings. 12. When questioned further, Mrs. Nelson explained that she operates an in-home day care center and did not know whether any of her employees or children may have used the KaZaA program on the computer which she uses for her business. 13. At that time, the SSG representative instructed Mrs. Nelson to delete the songs from her computer and provided a technical “walk through” on how to remove the KaZaA program from her hard drive. 14. Mrs. Nelson also provided the representative with the name and address of all of the individuals who had access to her computer including their seven year old daughter Alex and fifteen year old employee Eammtia Granado. After fully cooperating with their investigative efforts, the SSG representative insisted that it didn’t matter whether other individuals were involved since it was their computer that was used to “illegally steal” music. 15. Over the next several weeks, SSG representatives continued to harass Mr. and Mrs. Nelson with threats that if they did not pay thousands of dollars they would end up owing hundreds of thousands of dollars in fines and could face criminal charges. 16. On September 20, 2004, Plaintiffs filed suit against Mr. Nelson accusing him of copyright infringement by making “copyrighted sound recording owned by the record company plaintiffs available for mass distribution over a peer-to-peer network.” 17. After being served with a copy of the complaint, counsel for Mr. Nelson contacted Plaintiffs’ national representative in an effort to resolve the matter. Counsel for Mr. Nelson again re-iterated that Mr. Nelson (1) does not own or know how to operate a computer, (2) has never heard of a peer-to-peer file sharing program, (3) has never used the username of alex7@KaZaA, (4) has never downloaded any music recordings. 18. Plaintiffs’ national representative insisted that Defendant’s lack of involvement was irrelevant and that he could be liable for hundreds of thousands of dollars whether or not he was engaged in the file sharing of music recordings simply because the internet account was in his name.
