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Large Recording Companies v. The Defenseless

Some Common Sense Solutions to the

Challenges of the RIAA Litigations

By Ray Beckerman

The concern of this court is that in

these lawsuits, potentially meritori-

ous legal and factual defenses are

not being litigated, and instead, the

federal judiciary is being used as a

hammer by a small group of plaintiffs

to pound settlements out of unrepre-

sented defendants.

—Judge S. James Otero,

Elektra Entertainment

Group Inc. v. O’Brien, 2007.

s every federal judge must be

painfully aware by now, an esti-

mated 30,000 ordinary people

have been sued during the past four

years in U.S. district courts by the

world’s four largest record companies,

EMI, SONY BMG, Warner Brothers

Records, and Vivendi/Universal, or their

affiliates. The suits have been brought for

alleged infringement of sound recording

Ray Beckerman

is a partner at

Vandenberg & Feliu, LLP, in New York

City. A commercial litigator, his practice

encompasses communications-related

topics. Beckerman is the author of a

popular copyright law blog, “Recording

Industry vs. The People,” http://recording-

industryvspeople.blogspot.com. He can be

reached at rbeckerman@vanfeliu.com.

copyrights. Although these companies

are represented by a trade association,

the Recording Industry Association of

America (RIAA), none of the hundreds

of other members of this association

has participated in the litigation cam-

paign. The large majority of the defen-

dants have defaulted, and the default

judgments against them have been in

amounts that represent more than 2,000

times the actual damages sustained by

the plaintiffs.

Of those remaining, most have paid

settlement amounts that exceed 1,000

times the plaintiffs’ actual damages,

and a great number of the settling

defendants—perhaps most of them—

are people who did not actually engage

in file sh aring, let alone copyright

infringement through file sharing, and

against whom no legally cognizable

claim for secondary infringement could

be mounted. However, they are settling

becau se the alternat ive—protracted,

costly federal litigation—is not pos-

sible for them.

As to the handful of defendants who

have neither defaulted nor settled, most

are pro se. Only a very few have had

any form of legal representation. And

in those instances where there has been

representation, the attorneys are usually

working pro bono, or on a basis closely

resembling it, sometimes as a favor and

sometimes even involuntarily.

The courts of other countries—no-

tably the Netherlands and Canada—are

not clogged with these cases for the sim-

ple reason that they were quick to recog-

nize the paucity of the RIAA’s evidence

and refused to permit the identities of

Internet subscribers to be disclosed to

the record companies.

The courts of the

United States have not been so discrimi-

nating and have allowed a veritable

flood of one-sided litigation to crowd

their dockets.

This article will at-tempt to remove

some of the mythology re-ga rding these

cases, to make observations regarding

some of the points at which the process

is breaking down, and at each of those

junctures, to offer one or more practical,

constructive suggestions as to what the

courts need to do to make the process

more fair and balanced.

The Origin of a Case

There is a common misconception, active-

ly fostered by the RIAA’s public relations

spokespeople, that these are “download-

ing” cases. Nothing could be further from

the truth. The cases are brought without

any proof of downloading whatsoever.

The way in which these cases come

about is that an unlicensed “investiga-

tor” (through a method the RIAA has

termed “automated,” “proprietary,” and

“confidential” and that it refuses to dis-

close),

engages in a pretexting opera-

tion in which the investigator pretends

to be an ordinary user of one of the peer-

to-peer file-sharing networks. When the

investigator locates a group of “shared

files” on his computer screen, he makes

a screen shot, downloads a small num-

ber of files, and, from the data packet

he retrieves, supplies the RIAA with the

Internet protocol (IP) address contained

in the packet, together with the date and

time of the screenshot.

One investigative company, SafeNet

(formerly known as MediaSentry), con-

ducts all of these automated-process

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investigations for the RIAA. In each case,

a single investigator gathers the infor-

mation. According to the RIAA’s court

papers, it appears that a total of three

investigators, not a one of whom is a

licensed investigator, have collected the

information upon which all 30,000 cases

have been based over the past four years.

The RIAA’s expert witnesses have

been deposed only once so far in these

cases. In that testimony,

the expert wit-

ness conceded that neither his own testi-

mony and methods, nor the investigators’

work product upon which he relied, met

any of the Daubert reliability standards.

And yet, the investigator’s testimony and

that work product have formed the basis

for the 30,000—and counting—federal

court litigations to date.

The expert’s testimony similarly con-

cedes that the investigators could not

detect any “individual.” Rather, they

merely identified a computing device.

And yet the RIAA lawyers have contin-

ued to sign and to file complaints and

other documents stating that their inves-

tigators “detected an individual.”

Since almost all of the cases are ex

parte cases, default cases, pro se cases,

or barely defended cases, there is rarely

an attorney, and almost never a defen-

dant’s expert, to call these oversights to

the court’s attention.

Armed only with an Internet Protocol

(IP) address, the files the RIAA inves-

tigator himself downloaded, and a date

and time of the screenshot, the plaintiffs

then proceed to court to sue the person

who paid for the Internet access account

linked by an Internet service provider

(ISP) to the IP address.The result is

the filing of a lot of cases that prob-

ably would never have been brought

had they been thoroughly reviewed by

competent plaintiffs’ counsel, or had

plaintiffs’ counsel asked their clients a

few tough questions.

The same adversary system of justice

that works brilliantly when there are

equally weighted adversaries can some-

times produce disastrous consequences

where one side is not represented if the

courts are not vigilant, especially where,

as here, plaintiffs’ attorneys have been

less than mindful of their duties as offi-

cers of the court. In such an instance, it is

the duty of the court to see to it that the

court system is not used in an improper

manner. These cases, where four multi-

national, multibillion-dollar corporations

have joined forces to team up against

ordinary individuals, represent just such

an instance, and courts must pay special

attention and be vigilant if they are to

ensure a level playing field.

I maintain that the exact opposite has

occurred. Many judges, perhaps caught

off guard by this onslaught, have been

lulled into a pattern of inadvertently

waiving, for the plaintiffs’ benefit, the

normal requirements for federal litiga-

tion. As a consequence, the courts have

increased, rather than decreased, the

imbalances, in some cases presiding

over infernos of ex parte communica-

tion with judicial personnel, ex parte

orders, default judgments, and forced

settlements, where defendants see no

alternative—because there is no alter-

native—between accepting the risk of

financial ruin and paying thousands of

dollars in “settlement” of something

they have not done.

The Two Phases of a Case: “John

Doe” and “Named Defendant”

There are two distinct phases of the

RIAA litigations, the “John Doe” or ex

parte discovery phase and the “named

defendant” phase.

John Doe. Although the IP address

and the date and time of its procure-

ment could at best yield no more than

the identity of the owner of an Internet

access account and could not show that

any particular individual had engaged

in the file sharing complained of, the

RIAA proceeds on the assumption that

the person who paid for the Internet

access account is liable and must pay

or be sued.

To compensate for this shotgun

approach,

the RIAA’s lawyers are

fond of suggesting that the person who

paid for an Internet access account is

responsible for any copyright infringe-

ment with which that Internet access

has been associated. The only problem

with this viewpoint is that the U.S.

Supreme Court disagrees with it. In

MGM v. Grokster,

the Court adopted

an “inducement rule,” holding that sec-

ondary copyright infringement liability

requires “clear expression or other affir-

mative steps taken to foster infringe-

ment.”

Going into the discovery or John

Doe phase, the RIAA has an IP address,

a date, and a time. Although it could

discern, through publicly available Web

sites and from the IP address alone, the

state and particular region of a state for

each John Doe, it disregards that infor-

mation in selecting the venue of its John

Doe suit. Instead, it concerns itself with

neither venue nor personal jurisdiction

because it has no intention of actu-

ally pursuing its copyright infringement

claim in that proceeding. The “John Doe

words, is a sham proceeding. In reality,

it is an action for pre-action discovery,

which is an action that is not pro-

vided for in the Federal Rules of Civil

Procedure. So the RIAA improvised a

method of its own, one that involves

misleading the court.

A long line of unbroken author-

ity makes it quite clear that the Federal

Rules do not permit joinder in these

cases because the claims are merely

“parallel” and do not arise from com-

mon acts or transactions. This authority

includes a specific joint directive from

the District Court in Austin, Texas, to

the RIAA plaintiffs to cease and desist

from the practice. The RIAA neverthe-

less commences suit against a number

of unrelated John Does in the venue

where the ISP is located to pursue

its ex parte discovery motion. After it

learns the identities of the John Does, it

typically dismisses the John Doe cases

and brings individual suits against the

named defendants (thus, incidentally,

denying those defendants the potential

economies of scale that the plaintiffs

might seek to invoke for themselves by

misjoinder in the “discovery” phase).

The John Does are never served with

anything, except that after the action

has been commenced, after the ex parte

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motion has been made, and after the

ex parte motion has been granted, they

receive a few items by mail from the

ISP: a copy of a subpoena directed to

the ISP and a copy of an ex parte order.

They receive no summons, no com-

plaint, no copies of the court rules, no

copy of the motion papers, usually little

or no time to react, and no meaningful

opportunity to be heard in opposition to

the motion.

The proceeding is usually hundreds

or thousands of miles from the defen-

dant’s home and is over before it has

begun.

Named Defendant. After getting

names and addresses from the ISPs,

the RIAA’s next litigation step is not

to investigate but to file suit against

the person identified as having paid for

Internet access. Not surprisingly, many,

perhaps even most, of the people sued

are not the individuals who engaged in

file sharing. As noted earlier, the large

majority of these cases have resulted in

default judgments, a plurality of them

have settled, and a handful are con-

tested, almost none meaningfully.

Because of the ex parte applications,

the large number of default judgments,

and the proliferation of pro se cases in

which the defendants show up in court

at some scheduled appearances and not

at others, there is a huge volume of

ex parte communication between the

RIAA lawyer handling the cases and the

judicial personnel. The ex parte com-

munication problem is further exacer-

bated by consolidation of the cases (e.g.,

District of Massachusetts) or “related

case” treatment (e.g., Eastern District

of New York), where all of the RIAA’s

cases are turned over to a single dis-

trict judge, thus giving the single law

firm representing the plaintiffs virtually

untrammeled ex parte access to a single

set of judicial personnel and providing

huge economies of scale to plaintiffs that

are unavailable to the defendants.

The defendants in these cases invari-

ably experience a sense of hopelessness.

They feel that they have no chance at all

for a fair hearing. And they are, unfortu-

nately, right.

In the contested cases, the defendants

are without the resources needed to chal-

lenge the plaintiffs’ pleadings or to con-

duct discovery, and they are barraged

with discovery requests by the plaintiff,

especially for hard-drive examinations

and for unending streams of depositions

bearing upon the identities of possible

infringers other than the defendant. The

RIAA widens its net as far as it is permit-

Many judges

have been lulled

into a pattern

of inadvertently

waiving, for

plaintiff’s benefit,

the normal

requirements for

federal litigation.

ted to go, unless and until a court shuts

it down. It will first depose close family

members, then distant family members,

then neighbors, friends, and classmates if

the court allows it.

Similarly, in the rare event that the

defendants seek discovery of their own,

the RIAA will stonewall each and every

request except for materials it plans to

present as part of its prima facie case.

If the defendant asserts one or more

counterclaims, the RIAA will move to

dismiss all of the counterclaims, thus

generating still more expense in point-

less motion practice.

If the hard drive does not suggest

liability, the RIAA will not dismiss

the case, but will instead try to claim

that the defendant erased something

from the hard drive, in one case per-

suading the judge that an automatic

defragmentation scheduler was some-

how a basis for claiming spoliation of

evidence. If it cannot claim erasure, it

will claim that the defendant switched

hard drives. It will never concede that

the absence of corroborating evidence

on the hard drive means what most

reasonable people would conclude it

means, which is that the defendant

“didn’t do it.” And the RIAA has paid

investigators and expert witnesses on

call, which the defendants are without

resources to match.

Only a single case in four years,

Capitol v. Thomas,

has ever gone to

trial, and that one only because the judge

denied the defendant’s attorney’s motion

for leave to withdraw. The defendant’s

involuntary lawyer never even called a

single witness on his client’s behalf and

failed to object to the RIAA’s “expert”

testifying, even though the expert had

conceded meeting none of the Daubert

reliability standards.

Suggestions for the John Doe

Phase

Plaintiffs are ordered to file any

future cases of this nature against one

defendant at a time, and may not join

defendants for their convenience.

—Judges Sam Sparks and Lee

Yeakel, Fonovisa v. Does, 2004.

[I]t is difficult to ignore the kind of

gamesmanship that is going on here.

. . . These plaintiffs have devised a

clever scheme . . . , but it troubles me

that they do so with impunity and at

the expense of the requirements of

Rule 11(b)(3) because they have no

good faith evidentiary basis to believe

the cases should be joined.

—Judge Margaret J. Kravchuk,

Arista v. Does, 2008.

Joinder. The key words from the above

two quotations are “2004” and “2008.” In

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November 2004, the RIAA was ordered

“to file future cases of this nature against

one defendant at a time.” And yet in 2008

it continues the practice of deliberate

misjoinder, seemingly disregarding the

joint order from Austin, Texas. District

of Maine Magistrate Judge Kravchuk

was so troubled by the false statements

the plaintiffs had made in order to justify

joinder that she recommended to the dis-

trict judge that he order plaintiffs to show

cause why they should not be subject to

Rule 11 sanctions.

Even after that, in LaFace v. Does

1–38,

Judge Britt was required to

remind the RIAA yet again, as so many

judges have done before, of the contents

of Rule 20. As recently as April 3,

2008, Magistrate Judge Lenihan, did so

again.

In view of the RIAA’s lengthy

history of ignoring judicial precedents

in this area, a court should consider Rule

11 sanctions, as Magistrate Kravchuk

recommended, and contempt. Since

most “John Does” never get anywhere

near one of the “John Doe” proceed-

ings,

courts need to step in and create

an effective deterrent to the plaintiffs’

persistent rule violation.

Suggestion 1: Be alert to misjoinder

in “John Doe” cases. If a court is

presented with a “John Doe” case

that joins more than one defendant,

under well-settled principles the case

should be dismissed as to all John

Does except John Doe number one.

Plaintiffs should be ordered to show

cause why they should not be held in

contempt of the November 17, 2004,

order of the district court in Fonovisa

v. Does

and subject to Rule 11 sanc-

tions. And because there will likely

be no defendant’s counsel present,

the court should read the plaintiffs’

response with a critical eye.

Jurisdiction and Venue. As noted

above, most of the John Doe defendants

are being sued in a jurisdiction hundreds

or thousands of miles from their homes

although it is readily ascertainable to

the plaintiffs, through several publicly

accessible Web sites, as to which state

and which region of that state each IP

address is assigned.

Suggestion 2: Require in personam

jurisdiction and venue. If a court is

presented with a John Doe case that

fails to set forth detailed factual alle-

gations of the basis for venue and for

in personam jurisdiction in that dis-

trict, the action should be dismissed.

Ex Parte Nature of Proceeding

Plaintiffs contend that unless the Court

allows ex parte immediate discov-

ery, they will be irreparably harmed.

While the Court does not dispute that

infringement of a copyright results

in harm, it requires a Coleridgian

“suspension of disbelief” to accept

that the harm is irreparable, especially

when monetary damages can cure any

alleged violation. On the other hand,

the harm related to disclosure of con-

fidential information in a student or

faculty member’s Internet files can

be equally harmful. . . . Moreover,

ex parte proceedings should be the

exception, not the rule.

—Judge Lorenzo F. Garcia,

Capitol Records, Inc. v. Does,

2007.

It is fundamental to practice under the

Federal Rules that ex parte motion prac-

tice is a last, rather than a first, resort.

Not so in the world of RIAA litigation.

In support of a request for an ex

parte order, the RIAA generally makes a

conclusory allegation that, if the motion

is made any other way, the commercial

ISP or the college or university ISP will

destroy the evidence. First, it is difficult

to imagine that any college or university

in the United States, or any of the com-

mercial Internet service providers, which

are mostly large public utilities, cable

companies, and other large corporations,

would destroy the evidence if asked not

to.

Second, even were such an aver-

ment to be credited, it could be resolved

judicially in a much less onerous fashion

by simply issuing a temporary restrain-

ing order to retain such records.

In the third place, papers submitted

by the recording industry’s lawyers in

an ex parte environment should not be

accepted as gospel. In Arista v. Does

1–17, for instance, the attorney gen-

eral of the State of Oregon pointed out

to the court that the RIAA’s ex parte

motion papers, which had sought to

create the aura of an emergency and the

need for immediate ex parte action, had

concealed a highly material fact: that

the University of Oregon had informed

the RIAA prior to the institution of the

proceeding that the requested informa-

tion had been gathered and would be

preserved.

And, as noted earlier, RIAA

attorneys routinely allege that RIAA

investigators have “detected an indi-

vidual,” only to have investigators admit

under oath that they have not.

Suggestion 3: No ex parte motion

practice. Nothing should be granted

ex parte unless it involves an order

providing for meaningful notice of the

motion for discovery to be afforded

to the John Doe and to the ISP. The

order should state that the ISP is to

be provided with a full set of papers

for transmission to the John Doe, and

should provide ample time from the

Doe’s receipt of such papers, consis-

tent with the court’s usual practices for

motions on notice, to respond. These

should include everything a defendant

is normally entitled to receive under

the court’s usual rules and practices,

including the summons and complaint,

all of the motion papers, and the court

rules, notices, and other materials sup-

plied to defendants.

Merits of Statutory Basis for

Discovery Application

The Court is unaware of any other

authority that authorizes the ex parte

subpoena requested by plaintiffs.

—District Court Judge Walter D.

Kelley, Jr., Interscope v. Does,

2007.

We must accept the fact that digital

technology law, and the panoply of laws

being developed to protect privacy in the

Internet age are new and evolving areas

and that there are many unsettled ques-

tions to be resolved. There is a vacuum

of appellate authority on the procedural

questions that need to be raised, and in

view of the RIAA’s preference for ex

parte practice and the courts’ quiescence

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in that practice, it is an unfortunate

reality that the questions that need to

be asked and the issues that need to be

raised are not generally being heard at

all, even at the district court level. It is

not at all clear that the RIAA even has a

legal basis for the pre-action discovery

it is seeking.

There are complex statutes on the

books protecting the privacy rights of

ISP subscribers and college and univer-

sity students that are being ignored on

virtually a daily basis by the courts, in

large part because (a) the RIAA has not

raised them, and (b) due to the ex parte

nature of the proceedings, there is no

one in the courtroom to bring them to

the court’s attention. In such cases, it is

up to the courts to protect the privacy

rights of the RIAA’s targets, both by

requiring that defendants be provided

ample notice and an opportunity to

retain knowledgeable counsel and by

ensuring in those instances where the

defendants have not been able to retain

counsel that the application is consistent

with applicable law. In Interscope v.

Does 1–7,

a typical RIAA ex parte

John Doe pre-action discovery proceed-

ing, Judge Kelley, for example, did just

that. He rejected the RIAA’s application

altogether, after a thorough review of the

laws, concluding that there was simply

no legal basis for the identity discovery

the RIAA was seeking. Additionally,

in Arista v. Does 1–17,

the attor-

ney general in Oregon has argued that

the RIAA’s discovery application, if

granted, would force the university to

violate statutes protecting the rights of

the university’s students.

Suggestion 4: Make explicit the

legal authority upon which discov-

ery applications are permitted or

rejected. Justice will be well served

if a court is able to take the time to

scrutinize the statutory basis invoked

for each discovery application, cite

the authority supporting its rulings,

and deny discovery applications on

their merits if they are not warranted

by existing statutes or case law.

Preliminary Determination of the

Validity of Plaintiffs’ Copyright

Infringement Claim

[W]ithout actual distribution of

copies . . . there is no violation [of] the

distribution right.

—William F. Patry, Patry on

Plaintiff . . . must present at least

some facts to show the plausibility of

their allegations of copyright infringe-

ment. . . . However, . . . Plaintiffs have

presented no facts that would indicate

that this allegation is anything more

than speculation.

—Judge Rudi M. Brewster,

Interscope v. Rodriguez, 2007.

The courts in various jurisdictions are

generally in agreement, both as a matter

of constitutional law and common law,

that pre-action discovery of an anony-

mous person’s identity should not be

permitted, regardless of whether there is

a valid legal underpinning for the discov-

ery process invoked, absent a concrete

showing that the party seeking discov-

ery (1) has pled a valid claim for relief

against the anonymous party and (2) has

submitted a concrete and competent evi-

dentiary showing of each element of that

claim. I am of the view that the RIAA’s

boilerplate complaint clearly fails to state

a claim for relief, even under pre-Twom-

bly standards,

but I cannot ask the reader

to necessarily agree in the absence of

appellate authority on the subject. I do,

however, ask that courts scrutinize the

pleading and the evidence carefully at the

John Doe stage.

Suggestion 5: Scrutinize John Doe

pleadings and evidence without

being intimidated by technology jar-

gon. The complaint, of course, affords

the opportunity to ensure that plain-

tiffs have validly pleaded a copyright

infringement claim and that the evi-

dence is admissible and covers all

elements of the claim. It is easy to be

overwhelmed by impressive-sounding

technical and pseudo-technical jargon.

Allow me to observe that if the court

and the court’s law clerks and law

secretaries (many of whom are “digital

natives”) do not understand the case,

that may be a sign that the plaintiff

has none.

Suggestions for the “Named

Defendant” Phase

The Sufficiency of the Complaint. Once

the RIAA has obtained the information it

subpoenaed from the ISP, it then knows

the identity and address of the person

who paid for an Internet access account.

While most of us would think that a place

to begin an investigation, the RIAA treats

it as the end of its investigation. If that

account holder will not pay the RIAA’s

settlement demand, the RIAA sues. It

uses a standard boilerplate complaint.

At this juncture the courts should be

especially mindful of the admonition of

the Supreme Court in Bell Atlantic v.

Twombly

that sustaining a complaint

and allowing a federal case to proceed

to the discovery phase imposes enor-

mous financial consequences upon the

defendant

and is not a step to be taken

lightly. This principle is more, not less,

important, in cases like the RIAA cases,

because the defendants are not busi-

nesses or corporations, but individuals,

often poor and working-class individuals,

whose family budgets do not include the

hundreds of thousands of dollars needed

to withstand the hundreds of thousands

of dollars the RIAA is willing to spend

in any given case.

Some courts

have made pronounce-

ments to the effect that the court does

not “understand the technology” well

enough to make the dismissal determina-

tion, and that therefore the determination

should be made after completion of pre-

trial discovery. I submit that, if the court

does not understand the technology well

enough, it means that the plaintiffs have

not pled their claim well enough and their

complaint should be dismissed.

A court would be well advised to

treat its decision at the pleadings stage

to be, by far, the most important deter-

mination it will make because a denial

of the dismissal motion sentences the

defendant to one of two hells: payment

of an extortionate settlement for some-

thing he did not do or a nightmare of

vexatious litigation.

And the dismissal question is espe-

cially critical at the district court level

at this time because there is no appellate

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pg_0006

authority at all on the subject. If a court,

after due consideration, should sustain

a RIAA complaint, it should certify the

order for an interlocutory appeal and

stay all proceedings during the pendency

of the appeal. Thousands of people’s

lives are being affected by these cases;

they are worthy of, and are crying out

for, some appellate guidance.

Suggestion 6: Carefully evaluate

motions to dismiss under Rule 12(b)

(6) of the Federal Rules of Civil

Procedure. Careful evaluation of a

complaint’s sufficiency on a motion

to dismiss may ultimately spare defen-

dants significant and unwarranted

hardship. A court, therefore, should

stay all discovery while the motion is

pending, and, if it denies the motion,

certify the order denying the dismissal

motion for an interlocutory appeal.

Relatedness and Consolidation. As

noted above, consolidating cases or treat-

ing cases as “related” when the only rela-

tionship among them is that the plaintiffs

are the same, is unfair to the defendants

in that it creates a huge economy of

scale available only to the plaintiffs and

accentuates the problem of ex parte com-

munication, thus heightening, rather than

lessening, the already disproportionate

imbalance between plaintiff and defen-

dant. Consolidation essentially vests these

private, for-profit, corporations with the

trappings of a government agency and

creates a sense of hopelessness among

all defendants who enter the courthouse

door. It is simply not consistent with the

law to provide consolidation or related-

case treatment to one nongovernmental

party because it is a high-volume litigant.

What is more, in the absence of appel-

late guidance on any of the important

legal questions, it would be much healthi-

er for each district court to get a diversity

of viewpoints from all of its judges, rather

than let one judge hearing consolidated

cases compound errors that he or she may

be making. See, e.g., Fonovisa v. Does,

supra, which, after severing all of the

John Does and ordering the record com-

panies to commence separate actions with

separate filing fees as to each, specifically

admonished plaintiffs not to file the cases

as “related.”

Suggestion 7: No routine consolida-

tion or “related case” treatment.

A court need only follow tradition-

al principles for consolidation and

“related case” treatment. There is no

need to create a special exception for

these plaintiffs. Where the defendants

are unrelated to each other, their cases

are unrelated to each other and should

be treated as such.

The Discovery Phase. The greatest

The RIAA

nevertheless

commences suit

against a number

of unrelated

John Does in the

venue where the

ISP is located to

pursue its ex parte

discovery motion.

potential for abuse in these cases lies in

the discovery phase, where most defen-

dants simply have no means to fight back.

The RIAA lawyers characteristically try

to keep a case alive as long as possible,

despite the likelihood that the defendant

did not commit copyright infringement,

because of the subpoena power that the

pendency of a federal litigation affords

them. However, their subpoena power is

invariably directed at targets other than

the defendant. Put simply, the subpoena

power was not given to attorneys to

enable them to conduct investigations of

other cases they might have brought had

they conducted a proper investigation in

the first place.

The “expert” report, “expert” testi-

mony, and investigator’s materials may

be dispensed with, under a suitable pre-

clusion order, since the investigator and

plaintiffs will likely refuse to disclose

the investigator’s methods, rendering

them unusable at trial, and since the

RIAA’s “expert” has admitted that nei-

ther his methods, nor the methods of the

investigators upon whose work he relies,

meet Daubert reliability standards.

Suggestion 8: Keep discovery short

and sweet. If, and only if, the plain-

tiffs can muster an evidentiary show-

ing that their case has merit and that

the defendant committed copyright

infringement, then the court may

allow (1) a deposition of the plain-

tiffs; (2) a deposition of the defen-

dant; and (3) an examination of the

hard drive by a mutually agreeable

independent neutral forensics expert

whose fees will be advanced by the

plaintiffs and will be treated as a tax-

able disbursement to abide the event.

The plaintiffs would not properly be

permitted to use the pendency of the

action as a platform for conducting

an investigation to find out who,

other than the defendant, they should

have sued.

Suggestion 9: Expert witness fees

should be advanced by plaintiffs.

Plaintiffs should be required to pay

their own expert witness fees and

to advance the defendant’s expert

witness fees with the expenditure to

be a taxable cost to abide the event.

Without this, the trier of fact will be

unable to obtain a true picture of the

technological questions that need to

be resolved.

Attorney Fees. In view of the vir-

tual impossibility of defendants finding

counsel willing and able to represent

them in these proceedings, and in view

of the novelty of the legal issues that the

RIAA is presenting, the award of attor-

ney fees to those few defendants who

somehow manage to fight back and win

is crucial. Otherwise, it will continue to

be virtually impossible for the courts to

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

pg_0007

hear the “other side of the story.” Each

defendant who fights back is fighting

on behalf of hundreds of thousands of

other people, and each attorney who

represents such a defendant, at the risk

of being unpaid or of being very poorly

paid, is doing an important service to the

development of copyright law.

Suggestion 10: The court should

award attorney fees, in most cases

with a multiplier. In every instance in

which a defendant wins on the merits,

the plaintiffs voluntarily dismiss with

prejudice, or the plaintiffs dismiss

without prejudice but have forced the

defendant to incur significant attor-

ney fees, the court should deem the

defendant a “prevailing party” under

the Copyright Act and award attorney

fees. In most cases, there should be

a multiplier due to the financial risk

taken by the attorney.

Confidentiality. The world chang-

es, and litigation in 2008 is different

than it was five years ago. One of the

major differences has been the advent

of electronic filing in the federal courts

and the proliferation of digital ver-

sions of litigation documents. This shift

has enabled Web sites to make actual

legal documents available online and to

report much more closely on the details

of important litigation. See, e.g., Web

sites such as http://growklaw.net; blogs

such as the author’s blog, “Recording

Industry vs. The People,” http://record-

ingindustryvspeople.blogspot.com; and

online legal publications such as Pike &

Fisher’s “Internet Law & Regulation,”

http://ilrweb.com.

At present, the primary way of thor-

oughly researching the RIAA cases is

on the Internet. Prior to the advent of

the coverage of these cases by these

sites, one of the RIAA’s many strate-

gic advantages was that plaintiffs’ one

national law firm was fully aware of

everything going on in all the cases,

while the defendants and their lawyers

did not know about anything going

on in any other case, or indeed if any-

one was fighting back anywhere, at

all. The Internet coverage of the cases

has diminished that particular strategic

advantage somewhat, and empowered

defendants and defendants’ lawyers by

making available to them court decisions

and orders, pleadings, motion papers,

discovery documents, transcripts of oral

arguments and depositions, expert wit-

ness reports, stipulations, and other fil-

ings, thus reducing the costs of litigation

to defendants. In response, the RIAA,

whose litigation strategies appear to

include driving up the costs of defense,

has embarked on a policy of seeking

It is simply

not consistent

with the law

to provide

consolidation

or related-case

treatment to one

nongovernmental

party because it

is a high-volume

litigant.

confidentiality wherever possible.

Courts should not succumb. It is in

the interest of our society to reduce, not

to enhance, the cost of access to legal

representation. The RIAA’s confidenti-

ality mantra is not in the public interest

and should not be countenanced.

Additionally, there is widespread pub-

lic interest in these cases among people

from all walks of life and from all across

the world. The courts should take into

account the First Amendment and the

public’s right to know in deciding upon

the RIAA’s confidentiality requests.

Suggestion 11: Scrutinize the plain-

tiffs’ confidentiality requests care-

fully. In analyzing the RIAA’s confi-

dentiality requests, the court should take

into account the public’s right to know

under the First Amendment, and should

not allow the RIAA to use “confidenti-

ality requests” as a means of depriving

current and future defendants, who are

already at a significant economic disad-

vantage, from obtaining the tools they

need to defend themselves.

Summary Judgment. In cases where

a dismissal motion has not been made, a

defendant’s early-stage summary judg-

ment motion is the best way for a court

to purge cases that should not have been

brought in the first place, as summa-

ry judgment searches the record. Such

motions should be encouraged and evalu-

ated open mindedly, and discovery should

be stayed during their pendency to avoid

undue expense.

The summary judgment motion

should be meaningfully available before,

rather than after, protracted litigation

has occurred. If the defendant swears

under oath that he or she did not do

what plaintiffs claim he or she did, that

should search the record and the plain-

tiffs should be put to their proof. If they

cannot then make out a case against the

defendant, the motion should be granted,

and should not await the defendant’s

having to spend a fortune in legal fees

to get to the close of discovery, based on

plaintiffs’ surmise that discovery might

possibly turn up something.

The plaintiffs routinely oppose

any summary judgment motion with

mounds of inconclusive paper, larded

with fake techno-speak but saying noth-

ing about any copyright infringement by

the defendant.

The court in this context should be

mindful of the admonition of Grokster

that no case for secondary copyright

infringement liability can be mounted

absent proof that the defendant engaged

in affirmative acts to induce or encourage

not muster enough evidence of (a) direct

dant or (b) affirmative acts to induce

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

pg_0008

or encourage copyright infringement by

another to create a triable issue of fact, a

defendant’s summary judgment motion

should be granted.

Suggestion 12: In accordance with

standard summary judgment prac-

tice, grant defendants’ summary

judgment motions in the absence

of proof of infringement or induce-

ment. If, in opposition to the motion,

plaintiffs cannot prove that the defen-

dant (1) personally committed a copy-

right infringement or (2) by affirmative

acts induced or encouraged someone

else to commit copyright infringement,

the motion should be granted, regard-

less of the stage at which the motion is

made. It should not have to await the

close of discovery.

Default Judgments. These are unliq-

uidated tort cases, not cases brought on

liquidated contract claims, and plaintiffs

should not be awarded the privilege of

obtaining default judgments based on

written papers and scripted submissions.

They should be required to produce live

witnesses at an inquest, and the witnesses

should be subject to cross-examination by

the court. What is more, the constitution-

ality of the plaintiffs’ statutory damages

theory should be tested at the inquest: the

plaintiffs should be required to prove the

actual damages proximately flowing from

the defendant’s alleged infringement, for

without such proof a court is unable to

determine the all-important question of

whether the statutory damages sought are

unconstitutionally disproportionate.

Suggestion 13: Require inquests in

cases of default. Default judgments

are never to be granted only on the

basis of written papers and scripted

submissions. The plaintiffs must (1)

produce live witnesses who can be

cross-examined by the court and (2)

prove actual damages proximately

flowing from defendant’s infringement,

so that the court can determine whether

the statutory damages being sought are

unconstitutionally excessive.

Helpless Defendants. The rumors

of the RIAA pursuing defendants from

among the most vulnerable segments of

our society are, unfortunately, not exag-

gerated. It will not drop cases against

defendants based on hardship, helpless-

ness, injury, or any other factor. It has

sued, and relentlessly prosecuted, chil-

dren, people with multiplesclerosis, stroke

victims, grandparents, people on welfare,

people living on Social Security disabili-

ty, people displaced by hurricanes, people

who have never used a computer . . . the

list goes on and on. In Priority Records v.

Chan

where the RIAA planned to sue a

fourteen-year-old based upon an alleged

at the age of thirteen, the court ruled that

a guardian ad litem had to be appointed

and that the funding had to come from

the plaintiffs. In Elektra v. Schwartz,

guardian ad litem was appointed to pro-

tect a defendant suffering from multiple

sclerosis and related conditions. Similar

solutions should be invoked by the courts

to protect helpless litigants.

Suggestion 14: Justice will be served

by the appointment of guardians ad

litem or the use of other procedures

to ensure that the rights of help-

less people are protected. The court

should appoint guardians ad litem

where authorized by law and seek

assistance from pro bono panels, bar

associations, legal aid organizations,

and other possible sources to ensure

that the rights of helpless people are

protected.

Need for Published Decisions. It

is a small, but important matter: plain-

tiffs’ counsel have access to all of the

unpublished decisions, and the defen-

dants do not.

Suggestion 15: Send decisions for

publication. Please send all deci-

sions, other than grants of uncontest-

ed applications, out for publication

so that the defendants’ bar will have

access to them.

Conclusion

While there is much more that could be

written on the subject, I believe that imple-

menting the above suggestions will help

to make the federal courts a fairer forum

for the determination of these actions.

These proposed measures wil advance

the correct determination of important

and evolving legal question, reduce the

number of forced settlements being paid

by completely blameless defendants, and

reduce the number of cases on the federal

court dockets that do not belong there.

Endnotes

1. Elektra EntertainmentGroupInc. v. O’Brien,

2007 ILR Web (P&F) 1555 (C.D. Cal. 2007), (S.

James Otero, J.), www.ilrweb.com/viewILRPDF.

asp?filename=elektra_obrien_070302Decision.

2. The author’s statistical information is anec-

dotal, based on personal experience, on press

accounts, and RIAA press releases. The actual

numbers would be an interesting statistical study.

3. The wholesale price of each song file is

approximately 70 cents per song. The royalties

payable for each download and other expenses

are typically in the neighborhood of 35 cents per

song. In lieu of proving its 35 cents per song file

in damages, the RIAA predictably elects to obtain

statutory damages on a theory that entitles it to $750

per song file. In Capitol v. Thomas, 2006cv01497

(D. Minn. Aug. 31, 2007), the only fully contested

case known to have gone to trial, a verdict in favor

of the plaintiff was awarded in which the damages,

$9,250 per song file, represented approximately

23,000 times the actual damages. http://recordin-

gindustryvspeople.blogspot.com/2007/01/index-of-

litigation-documents.html#Virgin_v_Thomas.

4. In Capitol v. Thomas, note 3 supra, the

defendant’s lawyer had made a motion for leave to

withdraw, which was denied.

5. BMG v. Doe (Canada), documents col-

lected at http://recordingindustryvspeople.blog-

spot.com/2007/01/index-of-litigation-documents.

html#BMG_v_Doe(Canada); Foundation v.

UPC Nederland, documents collected at

http://recordingindustryvspeople.blogspot.

com/2007/01/index-of-litigation-documents.

html#Foundation_v_UPC_Nederland.

6. See litigation documents in UMG v. Lindor,

05-cv-1095 DGT/RML (E.D.N.Y.), appended to

“Marie Lindor moves to compel MediaSentry

to respond to document subpoena,” Recording

Industry vs. The People, February 19, 2008, http://

recordingindustryvspeople.blogspot.com/2008/02/

marie-lindor-moves-to-compel.html.

7. It would take an entire book to explain how

fraught with error even the preliminary identifica-

tion process, which seeks to identify the owner of

an Internet access count, is, but suffice it to say for

our purposes that (1) the files on the screenshot, or

the files downloaded, probably did not appear on

any single computer, but more likely represented

the combined contribution of thirty or forty “peer”

and “superpeer” computers in the network; (2) the

IP address in the data packet may or may not be

an IP address that was assigned to a computer that

had any of the songs on it; (3) because most IP

addresses are dynamic IP addresses that are repeat-

edly reassigned, each time an Internet connection is

turned off, sometimes within a single second, and

often within a single minute, MediaSentry does not

synchronize its equipment with the Internet service

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

pg_0009

providers (ISPs) and the ISPs’ recordkeeping is

not designed for this type of inquiry, so there are

numerous incorrect identifications of the Internet

service accounts; and (4) the world of the Internet

abounds in insecurity, such as insecure wireless

connections, “zombies,” “slaves,” use of routers,

and numerous other possibilities, for which the

RIAA’s witnesses make no allowance.

8. The deposition transcript is hosted online at

Pike & Fischer’s Internet Law & Regulation, at www.

ilrweb.com/viewILRPDF.asp?filename=umg_lind

or_070223JacobsonDepositionTranscript. Links to

the exhibits are likewise hosted on the same site;

a list of the links is online at http://recordingindus-

tryvspeople.blogspot.com/2007/03/deposition-of-

riaas-expert-available.html.

9. The RIAA has itself described it as “fishing

with a net”: “When you go fishing with a net, you

sometimes are going to catch a few dolphin.” Dennis

Roddy, The Song Remains the Same, Pittsburgh

Post-Gazette, Sept. 14, 2003, available at www.

postgazette.com/columnists/20030914edroddy0914

p1.asp, quoted in amicus curiae brief of American

Civil Liberties Union, Public Citizen, American

Association of Law Libraries, Electronic Frontier

Foundation, and ACLU Foundation of Oklahoma,

submitted in Capitol v. Foster, 2007 WL 1028532

(W.D. Okla. 20007), brief at 8, www.ilrweb.com/

viewILRPDF.asp?filename=capitol_foster_amicus.

10. 545 U.S. 913 (2005).

11. Capitol v. Thomas, 2006cv01497 (D.

Minn.) Aug. 31, 2007, Order, reprinted at http://

docs.justia.com/cases/federal/district-courts/minne-

sota/mndce/0:2006cv01497/82850/48/0.html.

12. Hon. Sam Sparks & Hon. Lee Yeakel,

District Judges, Western District of Texas,

Nov. 17, 2004, Fonovisa v. Does 1–41. 2004

ILRWeb (P&F) 3053, www.ilrweb.com/viewIL-

RPDF.asp?filename=fonovisa_does_041117

OrderGrantSeverance).

13. Hon. Margaret J. Kravchuk, Magistrate

Judge, District of Maine, Jan. 25, 2008, Arista v.

Does 1–27, 2008 WL 222283.

14. 2008 WL 544992 (E.D. N.C, Feb. 27,

2008).

15. Fonovisa v. Does 1–9, 2008 U.S. Dist.

Lexis 27170, 2008 WL 919701 (W.D. Pa. Apr.

3, 2008).

16. As Judge Otero noted, joinder issues are

never subject to challenge by a defendant in these

cases because the defendants “do not set foot in

the courthouse”: “[A]n overwhelming majority

of cases brought by recording companies against

individuals are resolved without so much as an

appearance by the defendant, usually through

default judgment or stipulated dismissal. . . .The

Defendant Does cannot question the propriety of

joinder if they do not set foot in the courthouse.”

SONY BMG v. Does 1–5 (C.D. Cal. Aug. 29,

2007) 2007 ILRWeb (P&F) 2533, www.ilrweb.

com/viewILRPDF.asp?filename=sony_does1-5

_070904OrderDenyReconsideration).

17. Fonovisa v. Does 1–41, 2004 ILRWeb

(P&F) 3053 (W.D. Tex. 2004).

18. Capitol Records, Inc. v. Does, 1–16, 2007

WL 1893603 (N.M. May 24, 2007)(Lorenzo F.

Garcia, J.).

19. In Arista v. Does 1–7, 07 CV 649 (S.D.

W. Va.), it was alleged by attorneys for Marshall

University that the RIAA “misrepresented informa-

tion” to obtain ex parte treatment of its application,

falsely claiming that there was a danger of spo-

liation, when there was not. The university further

pointed out that the RIAA had waited four months

after obtaining the right to discovery to serve

its subpoena, something it would not have done

had its concerns about “urgency” been genuine.

See “Moving memorandum,” at 2–3, in “Second

university, Marshall U., moves to quash RIAA

subpoena; Magistrate Judge denies motion; Arista

v. Does 1–7,” Recording Industry vs. The People,

April 15, 2008, http://recordingindustryvspeople.

blogspot.com/2008/04/marshall-university-unsuc-

cessfully.html.

20. The attorneys for a John Doe at the University

of Maine made this observation in Atlantic v. Does

1–14: “This is at least the third case brought by these

plaintiffs against various Does; the first of which the

undersigned is aware of was filed on May 3, 2007. It

was Atlantic et als v. Does 1–22, Dkt No. 07-00057.

It has terminated. The second is 07-162, which

is presently before Judge Woodcock. 07-162 has

been hotly contested and there was ample oppor-

tunity for plaintiffs to do something to protect their

interests as respects the records they seek from the

University System. However, as far as one can tell

from the Linares Declaration, plaintiffs have never

inquired of the University System as to the nature

of its retention policy. That means they have never

sought an agreement that the University System

would retain records long enough for the plaintiffs

to obtain the information without ex parte discovery.

That means they have never learned, even though

they had almost a year, what the actual policy might

be. Also, if there was such a need for speed, why

did the plaintiffs wait over ninety days to sue these

defendants who were identified as targets beginning

on September 9 and ending on October 31? They

waited because they knew there was no urgency.

They probably knew the University System would

not destroy records they were seeking once it was

notified of the pendency of this action. They most

likely knew the records would be there if and when

this court said they could have them.” See “Motion

to vacate and quash” at 5–6. In a new John Doe

case directed at University of Maine, John Doe #10

moves to strike Linares declaration for illegality,

and to vacate ex parte order.” Recording Industry

vs. The People, Apr. 15, 2008.

21. See documents collected in “Oregon

Attorney General’s Reply Papers Go on the

Offensive, Seek Investigation of RIAA Tactics, in

Arista v. Does 1–17”, Recording Industry vs. The

People, Nov. 29, 2007, http://recordingindustryvs-

people.blogspot.com/2007/11/oregon-attorney-

general-files-reply.html.

22. Interscope v. Does 1–7, 494 F. Supp. 2d 388

(E.D. Va. 2007).

23. Id.

24. Id. See 07-cv-6197 (MRH) (D. Oregon),

Moving papers of Oregon Attorney General,

Documents collected at http://recordingindustryvs-

people.blogspot.com/2007/01/index-of-litigation-

documents.html#Arista_v_Does1-17.

25. 4 William F. Patry, Patry on Copy-

right § 13:9 (2007); see also MGM v. Grokster,

545 U.S. 913 (2005); Perfect 10, Inc. v. Amazon.

com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)

(affirming the district court’s finding “that dis-

tribution requires an ‘actual dissemination’ of a

copy”); Hon. Janet Bond Arterton, District Judge,

District of Connecticut, Feb. 13, 2008, Atlantic v.

Brennan, 2008 WL 445819.

26. Senior District Judge, Southern District

of California, August 17, 2007, Interscope

v. Rodriguez, 2007 WL 240848407-cv-6197

(MRH) (D. Oregon), Moving papers of Oregon

Attorney General, documents collected at

http://recordingindustryvspeople.blogspot.

com/2007/01/index-of-litigation-documents.

html#Arista_v_Does1–17.

27. The earlier version of the complaint

failed to provide any details at all of the sup-

posed “distribution” or “reproduction” and con-

cocted a third theory having no basis in the

After the Interscope v. Rodriguez ruling referred

to earlier, it began using a modified version

of the complaint, which omitted the troubling

“making available” language, continued to offer

no details at all as to the defendant’s “distri-

bution” or “reproduction,” and added a few

“factual”-sounding allegations about its own

investigators’ activities that are irrelevant but,

more importantly, directly contradicted by the

RIAA’s witnesses’ own sworn testimony, and

fail the “plausibility” test on that ground.

28. 127 S. Ct. 1955 (2007).

29. In these cases the consequences are even

more ruinous and oppressive than in the aver-

age case. The defendants are people without

resources, and most have not engaged in the

supposed file-sharing activity of which they are

suspected. And of those, many have not actually

committed copyright infringement. But the cost

of defending one’s good name from the RIAA

onslaught is staggering. In Atlantic v. Andersen,

documents collected at http://recordingindus-

tryvspeople.blogspot.com/2007/01/index-of-

litigation-documents.html, whe re the RIAA

pursued an obviously innocent woman for three

years before finally admitting its mistake, the

defendant’s attorney’s incomplete time records

showed $150,000 in time charges.

30. Interscope v. Duty, 2006 WL 9880 (D.

Ariz. 2006).

31. Fonovisa v. Does, 1–9, 2008 U.S. Dist.

LEXIS 27170, 2008 WL 919701 (W.D.Pa. Apr.

3, 2008).

32. UMG v. Lindor, 2006 WL 3335048

(E.D.N.Y. 2006); J. Cam Barker, Grossly Excessive

Penalties in the Battle Against Illegal File-Sharing:

The Troubling Effects of Aggregating Minimum

Statutory Damages for Copyright Infringement,

83 Tex. L. Rev. 525 (2004).

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

pg_0010

33. 04-CV-73645 (E.D. Mich. June 23,

2005), www.ilrweb.com/viewILRPDF.asp?file

name=priority_chan_050623Order.

34. 06-CV-3533 (E.D.N.Y. April 12, 2007),

www.ilrweb.com/viewILRPDF.asp?filename=

elektra_schwartz_070412OrderGrantMotGAL.

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.