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, indicating that an order has already been granted against them: i.e., instead of receiving notice that the RIAA is applying for an order, they instead are notified that they have already lost the motion, without ever even having known of its existence.
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 has recently come under attack in 3 cases in Manhattan federal court: Atlantic v. Does 1-25 before Judge Swain, Motown v. Does 1-99 before Judge Buchwald, and Warner v. Does 1-149, before Judge Owen, in which "John Doe" defendants represented by Ray Beckerman and Ty Rogers brought motions to (a) vacate the ex parte discovery order on the ground that it had not been supported by competent evidence of a prima facie copyright infringment case, (b) quash the subpoena on that ground plus the additional ground that the complaint fails to state a claim for relief, and (c) sever and dismiss as to all defendants other than John Doe #1.
The moving parties were from Iowa, Texas, Long Island, and North Carolina -- i.e. not one of the John Does was someone who could properly be sued in Manhattan federal court.
All 3 motions have been denied.
The decisions are not appealable, since they are, theoretically, "interlocutory". However, it is the RIAA's usual practice to discontinue the "John Doe" cases, which means that there will never be a final judgment in the case, so the orders will never be brought to appellate scrutiny.
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 over 1000 times the 70-cent amount for which the license to the song could have been purchased. This measure of damages has been challenged on constitutional grounds in UMG v. Lindor, in Brooklyn federal court, where Ms. Lindor has requested a pre-motion conference in anticipating of a motion to add unconstitutionality as a defense, and for partial summary judgment limiting plaintiffs' damages.
There have been several challenges to the sufficiency of the boilerplate complaint, in the form of a motion to dismiss complaint, 3 in Texas, 1 in Minnesota, 1 in Arizona, and 3 in New York; my firm has been involved in the 3 New York motions.
In Elektra v. Santangelo, in Westchester, the motion was denied.
A pretty stunning result occurred in Interscope v. Duty, in Arizona. In my experience I've never seen anything like it. The judge denied the defendant's dismissal motion, not because he agreed with the RIAA, but because he didn't feel he understood the technology well enough to rule on the case.
Then, in Waco, Texas, in Warner v. Payne, the judge basically followed Interscope v. Duty, saying he didn't have enough understanding of Kazaa technology to determine the validity of the RIAA's "making available" defense, and speculated that the RIAA "may" be able to show actual downloading or actual uploading, and then would not have to rely on the "making available" defense. And then, miraculously, a judge in Abilene, Texas, likewise said he didn't have enough 'understanding' either, and likewise denied the defendant's dismissal motion, in Fonovisa v. Alvarez.
In Elektra v. Barker in Manhattan, Maverick v. Goldshteyn in Brooklyn, and Arista v. Greubel in Dallas, Texas, the motions are pending, and the RIAA is citing to the judges their strange victories in Interscope v. Duty, Fonovisa v. Alvarez, and Warner v. Payne.
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 requested permission to file such a brief, and the United States Department of Justice submitted a "Statement of Interest" taking issue with an argument made by the Electronic Frontier Foundation. Briefing has now been completed, and the parties are awaiting either a decision from Judge Karas, or the setting of an oral argument date if the judge feels that oral argument is needed.
The Department of Justice also submitted a "Statement of Interest" in Fonovisa, also on the side of the RIAA, relating to the same limited issue.
A new dismissal motion motion is being made in Westchester, in Warner v. Cassin.
In cases where the sufficiency of the complaint is not being challenged, or has been accepted by the court, 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. There have been interesting discovery rulings in Elektra v. Santangelo in White Plains, Atlantic v. Andersen in Oregon, and Motown v. Nelson in Michigan.
A number of discovery rulings were made by Magistrate Robert M. Levy in UMG v. Lindor. These will be published when reduced to a formal order.
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 its 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. The judge thereafter dismissed the case when the RIAA ignored his instruction to submit a plan that would ensure payment of the guardian ad litem's fees.
In an earlier case against Brittany's mother, the RIAA refused to withdraw the case against the mother, but then changed its mind and did withdraw when faced with the mother's motion for summary judgment and attorneys fees. A similar scenario occurred in Capitol v. Foster, in Oklahoma, where the RIAA withdrew only when faced with the mother's motion for summary judgment and attorneys fees. The judge let the RIAA drop its case, but held that the 'voluntary' withdrawal did not make the RIAA immune from legal fees, and indicated that he may award the mother her attorneys fees.
In UMG v. Lindor, in Brooklyn, the defendant has challenged the RIAA's damages theory on the ground that seeking damages of $750 per song, where the actual damages are only 70 cents per song, is unconstitutional.
( All litigation documents referenced above are available online and may be accessed through http://info.riaalawsuits.us or through "Index of Litigation Documents" at Recording Industry vs. The People (http://recordingindustryvspeople.blogspot.com))
Source: http://recordingindustryvspeople.blogspot.com/
This only serves to make people hate lawyers even more.. rich scheming ba$tards. Oh yea, I want my daughter to go to college and become a lawyer so she can support her old Ma in her golden years...lol. Only kidding.