[Infowarrior] - How the RIAA Litigation Process Works

[Richard Forno]

Wednesday, April 05, 2006
 http://recordingindustryvspeople.blogspot.com/2006/04/how-riaa-litigation-p
rocess-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.