[attrition] How the RIAA Litigation Process Works

[security curmudgeon]

Wednesday, April 05, 2006

  http://recordingindustryvspeople.blogspot.com/2006/04/how-riaa-litigation-process-works.html

How the RIAA Litigation Process Works

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 is currently under attack in 3 cases that are pending in 
Manhattan federal court: Atlantic v. Does 1-25 pending before Judge Swain, 
Motown v. Does 1-99 pending before Judge Buchwald, and Warner v. Does 
1-149, pending before Judge Owen. A motion to vacate the ex parte 
discovery order is pending in Atlantic. Motions to vacate the ex parte 
discovery order, quash the subpoena, and sever and dismiss as to all John 
Does from 2 to the end, are pending in Motown and in Warner.

In Atlantic v. Does, the "John Doe" who attacked the process is a resident 
of the Midwest.

The "John Doe" who moved to vacate the ex parte discovery order in Motown 
v. Does 1-99 is from the South.

In Warner v. Does 1-149, there are two moving parties. One is from the 
Southwest, the other from the Greater New York area.

The motions in Atlantic and Motown have been fully briefed, and are 
awaiting decision.

The motion in Warner was filed March 31st. The RIAA's opposition papers 
have not yet been served.

Settlement phase

After getting the name and address of the person who paid for the internet 
access account, they then send him or her a letter demanding a 
"settlement".

Their settlement is usually for $3750, non-negotiable, and contains 
numerous one-sided and unusual provisions, such as a representation that 
peer to peer file sharing of copyrighted music is a copyright infringement 
(a representation that is far too broad, undoubtedly there are 'sharing' 
behaviors with digital files, as there are with cd's, that are not 
copyright infringements). Even certain innocuous provisions, worded in a 
way to make them obligations of the defendant but not the RIAA, are deemed 
'non-negotiable'. At bottom, the settlement is cold comfort to the 
defendant, because it does not speak for the other potential plaintiffs -- 
the owners of the copyrighted work, or the other record companies not 
represented by the RIAA litigation fund.

Litigations against named defendants

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).

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 757 times the 99-cent amount for which the license to the song could 
have been purchased.

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, and a number in New York in which my firm has been involved.

In Elektra v. Santangelo, in Westchester, the motion was denied.

In Elektra v. Barker in Manhattan, Maverick v. Goldshteyn in Brooklyn, and 
Arista v. Greubel and Fonovisa v. Alverez in Dallas, Texas, the motions 
are pending.

In Elektra v. Barker, amicus curiae briefs have been submitted by the 
Electronic Frontier Foundation, 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 and the United States Department of 
Justice have indicated an interest in filing papers in opposition to the 
motion as well.

In cases where the sufficiency of the complaint is not being challenged, 
the RIAA serves a number of pretrial discovery requests, calling for 
examination of the hard drive and numerous other items, and discovery is 
being litigated.

In Priority Records v. Brittany Chan, a Michigan case, the litigation was 
brought against a 14 year old girl who allegedly engaged in file sharing 
when she was 13. The RIAA made a motion to have a guardian ad litem 
appointed so that their 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.