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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- He can be
reached at
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 sharing, let alone copyright
infringement through file sharing, and
against whom no legally cognizable
claim for secondary infringement could
be mounted. However, they are settling
because the alternative--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-garding 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-
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
Published in The Judges' Journal, Volume 47, Number 3, Summer 2008. 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
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.
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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
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
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-
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
copyright infringement" case, in other
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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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.
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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
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
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
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
Published in The Judges' Journal, Volume 47, Number 3, Summer 2008. 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
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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
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
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-
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,
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
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
, 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
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
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,
We must accept the fact that digital
copyright law, Internet law, information
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
Published in The Judges' Journal, Volume 47, Number 3, Summer 2008. 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
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.
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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 17
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 117,
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
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
Copyright, 2007.
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-
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-
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.
that sustaining a complaint
and allowing a federal case to proceed
to the discovery phase imposes enor-
mous financial consequences upon the
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
Published in The Judges' Journal, Volume 47, Number 3, Summer 2008. 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
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.
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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
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,
, 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
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
Published in The Judges' Journal, Volume 47, Number 3, Summer 2008. 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
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.
background image
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; blogs
such as the author's blog, "Recording
Industry vs. The People," http://record-; and
online legal publications such as Pike &
Fisher's "Internet Law & Regulation,"
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
or related-case
treatment to one
party because it
is a high-volume
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-
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
copyright infringement. If plaintiffs can-
not muster enough evidence of (a) direct
copyright infringement by the defen-
dant or (b) affirmative acts to induce
Published in The Judges' Journal, Volume 47, Number 3, Summer 2008. 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
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.
background image
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-
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 multiple sclerosis, 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.
where the RIAA planned to sue a
fourteen-year-old based upon an alleged
copyright infringement she committed
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
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
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.
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.
1. Elektra Entertainment Group Inc. v. O'Brien,
2007 ILR Web (P&F) 1555 (C.D. Cal. 2007), (S.
James Otero, J.),
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-
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
html#BMG_v_Doe(Canada); Foundation v.
UPC Nederland, documents collected at
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://
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
Published in The Judges' Journal, Volume 47, Number 3, Summer 2008. 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
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.
background image
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, atwww.
or_070223JacobsonDepositionTranscript. Links to
the exhibits are likewise hosted on the same site;
a list of the links is online at http://recordingindus-
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.
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,
10. 545 U.S. 913 (2005).
11. Capitol v. Thomas, 2006cv01497 (D.
Minn.) Aug. 31, 2007, Order, reprinted at http://
12. Hon. Sam Sparks & Hon. Lee Yeakel,
District Judges, Western District of Texas,
Nov. 17, 2004, Fonovisa v. Does 141. 2004
ILRWeb (P&F) 3053,
13. Hon. Margaret J. Kravchuk, Magistrate
Judge, District of Maine, Jan. 25, 2008, Arista v.
Does 127, 2008 WL 222283.
14. 2008 WL 544992 (E.D. N.C, Feb. 27,
15. Fonovisa v. Does 19, 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 15 (C.D. Cal. Aug. 29,
2007) 2007 ILRWeb (P&F) 2533, www.ilrweb.
17. Fonovisa v. Does 141, 2004 ILRWeb
(P&F) 3053 (W.D. Tex. 2004).
18. Capitol Records, Inc. v. Does, 116, 2007
WL 1893603 (N.M. May 24, 2007)(Lorenzo F.
Garcia, J.).
19. In Arista v. Does 17, 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.
"Moving memorandum," at 23, 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.
20. The attorneys for a John Doe at the University
of Maine made this observation in Atlantic v. Does
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 122, 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 56. 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-
22. Interscope v. Does 17, 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-
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
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
Copyright Act that it termed "making available."
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-
litigation-documents.html, where 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, 19, 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).
Published in The Judges' Journal, Volume 47, Number 3, Summer 2008. 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
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.
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33. 04-CV-73645 (E.D. Mich. June 23,
34. 06-CV-3533 (E.D.N.Y. April 12, 2007),
Published in The Judges' Journal, Volume 47, Number 3, Summer 2008. 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
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.