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Magistrate Suggests Fining RIAA Lawyers
NewYorkCountryLawyer writes "Angered at the RIAA's 'gamesmanship' in joining multiple 'John Does' in a single case without any basis for doing so, a Magistrate Judge in Maine has suggested to the presiding District Judge in Arista v. Does 1-27 that the record companies and/or their lawyers should be fined under Rule 11 of the Federal Rules, for misrepresenting the facts. In a lengthy footnote to her opinion recommending denial of a motion to dismiss the complaint (PDF, see footnote 5), Judge Kruvchak concluded that 'These plaintiffs have devised a clever scheme to obtain court-authorized discovery prior to the service of complaints, 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.' She noted that once the RIAA dismisses its 'John Doe' case it does not thereafter join the defendants when it sues them in their real names. Arista v. Does 1-27 is the same case in which student attorneys at the University of Maine Law School, "enthusiastic about being directly connected to a case with a national scope and significance", are representing undergrads targeted by the RIAA."
The judge specifically wants to fine them under Rule 11(b)(3), which states: (b) By presenting to the court a pleading, written motion, or other paper -- whether by signing, filing, submitting, or later advocating it -- an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery Basically, it's a serious ethics violation, and even being called on it without a penalty is going to kill these lawyers' reputations, and effectiveness in a courtroom.
Isn't the legal status of using an unlicensed investigator already in question?
Only in states where it's illegal to be an unlicensed "investigator".
If I have been able to see further than others, it is because I bought a pair of binoculars.
We could fire the attorneys into space, couldn't we? Please?
Most of the stuff on
The judge noted a clever tactic being used by the RIAA to obtain the lists of names from the captured ip addresses. A joint submission was being made to the court to gain clearance for this discovery process. Upon gaining the real names, the RIAA went on to sue them as individuals and ignored the group-status declared to the court.
RIAA lawyers were bending the law to get names--this was seen as being done in bad faith. Hence the footnote and the news article.
You may now resume your activity of reading further into the judge's remarks.
Cheers.
Yet Socrates himself is particularly missed.
A lovely little thinker but a bugger when he's pissed.
Congratulations sir! Excellent Rickrolling.
;)
If the trolls were all like you, the internet would be a more fun place
http://www.xkcd.com/354/
I share the Doe Defendants' concern over the absence of individualized allegations, but for a different reason. My concern has to do with the rules of joinder, see Rule 20(a), and whether it is appropriate for the Plaintiffs to join claims against disparate defendants concerning disparate (albeit similar) conduct, even if only for the purpose of gaining the authority to serve subpoenas to obtain the defendants' names and contact information. I assume they have done so in order to limit their filing fees and make their discovery work more manageable, but I am not convinced that it is proper. See, e.g., DirecTV, Inc. v. Adrian, 2004 U.S. Dist. LEXIS 8922, 2004 WL 1146122 (N.D. Ill. May 17, 2004) (involving claims that defendants separately pirated satellite TV services, without any allegation of concerted action, concluding that joinder was improper, and severing all but the first named defendant from the action). In particular, paragraph 20 of the complaint alleges that the claims against all defendants arise from the "same series of transactions or occurrences" because the Doe Defendants have the same ISP (the University of Maine) and all engaged in file-sharing over the Internet using that ISP. The complaint wants, however, any allegation of concerted conduct. The allegation that all of the claims arise from the same series of transactions or occurrences because all of the defendants used the same ISP sounds good, but makes little sense when one appreciates that having a common ISP says nothing about whether the use of that service by two or more people amounts to the same transaction or occurrence. Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. Separately, the Court may sever defendants sua sponte, pursuant to Rule 21, although dismissal of the action is not authorized. I appreciate that increased costs may redound to the defendants' detriment eventually, but it is difficult to ignore the kind of gamesmanship that is going on here with respect to joinder. Suppose, instead of university students, the record companies chose to target all individuals within the District of Maine who had used these P2P services and had TimeWarner Cable for their ISP. Would all those individuals be properly joined in a single complaint? I think the Plaintiffs know the answer to that question because on May 5, 2007, many of these same plaintiffs filed a very similar lawsuit, Atlantic Recording Corp., et al. v. Does 1-22, 1:07-cv-057-JAW. A procedure similar to the one used in this case was adopted in that case, but no motions to dismiss or motions to quash were filed and presumably the plaintiffs obtained the discovery they sought. The case was voluntarily dismissed on July 16, 2007. Following that dismissal the same counsel filed at least three separate cases in this court: Atlantic Recording Corporation, et al. v. Anna Lenentine, 1:07-cv-133-JAW, on September 4, 2007 (still pending); Capitol Records Inc. v. Cara Laude, 2:07-cv-154-GZS, on September 4, 2007 (settled and dismissed on January 22, 2008); and Atlantic Recording Corp. v. Christopher Leavitt, 2:07-cv-156-DBH, on September 4, 2007 (voluntarily dismissed with prejudice on October 16, 2007). The relevant allegations in the respective complaints simply state that the defendants were "identified as the individual[s] responsible for that IP address at that date and hour" without reference to how the identification was made. However, there is certainly a "plausible inference" that the identifications were made as a result of the May lawsuit. It is curious that no attempt was made to join these cases as arising from the same transaction or occurrence if my plausible inference is accura
People, please remember that the RIAA doesn't sue anyone. The actual labels are the named plaintiffs in the file sharing lawsuits. You know, Sony BMG, EMI, etc.
Esmie Tseng. She was a 15 year old girl who was physically, sexually, and emotionally abused by her immigrant parents. (Emotional abuse is BS in my opinion, except in this case. The crap they did to her was awful.) One day, when she was getting beaten by her mother, she grabbed a knife. Her mother took it away from her. Esmie grabbed another knife and stabbed her mother 5 times. She then ran to her bedroom. Esmie's mother called Esmie's father who was at work. He got home, spoke to Esmie's mother, called 911, and then Esmie's mother died. She had been afraid to call 911 because she might have been put in jail for abuse.
So what does Paul Morrison do? He throws the book at an abused 15 year old girl. At 16, she is placed in an adult prison. The 16 year old girl is forced to strip on a weekly basis in front of male guards. She's surrounded by women and transgender men who are in jail for trafficking drugs, violent crimes, prostitution, and other violent crimes. She is not allowed to take college courses. At 15, her life was over, all because she did not want to be abused any longer.
As you know, Paul Morrison is now AG. He used the misery of a little girl to catapult himself to statewide office.
Hoist Number One and Number Six.
Actually, existing law -- were it applied -- would stop the John Doe cases easily. Under existing law, (a) the proceedings would not be ex parte but would be on notice, and (b) the plaintiffs could not get the John Doe's identity unless they had
-evidence
-in a form that would be admissible at trial
-sufficient to establish each and every element of
-a legally sufficient claim for copyright infringement.
The RIAA has none of the above.
Ray Beckerman +5 Insightful
2. This judge did.
Ray Beckerman +5 Insightful