Thursday, June 19, 2008

Copyright Spamigation

The case of UMG Recordings, Inc. v. Marie Lindor, No. 05-CV-1095 in the EDNY in Brooklyn has had a long and tortuous history including a reported opinion in November 2007 at 531 F.Supp.2d 453. The litigation began in February 2005 with the filing of a complaint against Marie Lindor, seeking damages and injunctive relief for copyright infringement under U.S. copyright laws, 7 USC § 101 et seq. The defendant is a home health aide who has never bought, used, or even turned on a computer in her life. She was sued by the Recording Industry Association of America (RIAA) in Brooklyn federal court for using an "online distribution system" to "download, distribute, and/or make available for distribution" music files, commonly referred to as peer to peer computer network or P2P.

Fortunately for Ms. Lindor, her defense counsel was Ray Beckerman who maintains a website called Recording Industry vs. the People to document the litigation tactics employed by the RIAA. Initially, the Lindor case seemed on track to follow the usual pattern in cases filled by the RIAA, where it discovers an IP address involved in file sharing, attempts to tie it to somebody and then brings suit in federal court, finally offering the defendant a chance to settle out of court for a few thousand dollars. On many occasions, would-be defendants decide to write a four-digit check to the RIAA and make the problem go away. In UMG v. Lindor, the defendant and her counsel, Ray Beckerman, decided to fight back, taking an unusual tactical course: investigating the possible use of P2P network by RIAA member companies.

Using agressive discovery tactics, Beckerman asked tough questions of the RIAA about its own use of P2P networks for sending music to radio stations. The RIAA refused to answer on the grounds that it was "not relevant to the claim or defense of any party," "not relevant to the subject matter involved in this action," and is not "reasonably calculated to lead to the discovery of admissible evidence". The judge found the RIAA's objections unconvincing and ordered them to respond. The RIAA responded to the questions without divulging whether the employees of record labels used P2P networks. Instead the plaintiffs merely replied that the two in-house lawyers they contacted and the head of procurement said that the record label never registered accounts. Defense attorney Beckerman objected, saying that RIAA deliberately narrowed the judge's instructions to cover the conduct of the labels themselves, rather than its employees, as the interrogatory had directed. This tactic struck a sore point especially since the record labels argue that the mere use of a P2P network indicates guilt.

Examining the numerous motions, pleadings and filings in both Westlaw and PACER reveals extensive pre-trial motion conferences related to discovery, summary judgment motions and applications for attorney fees. This week, it appears that the plaintiff is now making a motion for voluntary dismissal of the three and a half year old case. RIAA has not given up unconditionally as its application for dismissal is not only without prejudice but also seeks an order awarding discovery sanctions against Ms. Lindor and her attorney, Ray Beckerman, and staying all future proceedings. This stay would include any application for attorney fees on behalf of a prevailing copyright defendant to which they are presumptively entitled under § 505 of the Copyright Act even where plaintiff voluntarily dismisses the complaint, Mostly Memories, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093 (7th Cir. 2008).

The library catalog, SARA, has some useful material on the topic including Music Piracy and Crime Theory by Sameer Hinduja, Call No. HV6773 .H56 2006 and Internet Piracy, a short collection of essays edited by James D. Torr, Call No. KF3024.C6 I58 2005.

1 comment:

Ray Beckerman said...

Anyone in Brooklyn Law School thinking of submitting an amicus brief?