p2pnet news | Freedom:- A judge has accused Warner Music, EMI, Vivendi Universal and Sony BMG’s RIAA of using “gamesmanship” tactics in joinder cases where defendants are linked together.
These kinds of cases allow the corporate enforcer to efficiently terrorise a number of people simultaneously, in effect.
It also means they’re spared the time and expense of going after their victims one by one and, “it is difficult to ignore the kind of gamesmanship that is going on here” writes magistrate judge Margaret J. Kravchuk.
“A cadre of owners and licensees of certain copyrighted sound recordings, including Arista Records, Atlantic Recording, BMG Music, Capitol Records, Elektra Entertainment, Motown Record Company, Sony BMG Music Entertainment, Virgin Records America and Warner Bros. Records, brought this copyright infringement action against a collection of University of Maine students, identified to date only as Does 1-271 having certain IP addresses provided by the University, for their alleged use of an online media distribution system to unlawfully download and/or distribute various copyrighted works,” she says .
She sustained the action, but, “suggests sanctions for RIAA lawyers’ ‘gamesmanship’ in, “pretending to have grounds for joinder” when in fact there aren’t any, says Recording Industry vs The People.
“Suppose,” she writes, “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 in July last year.
And the allegation that all the claims came from the same series of transactions or occurrences because the defendants all used the same ISP, “sounds good,” says Kravchuk, “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”.
In 1:07-cv-057-JAW, “Following that dismissal the same counsel filed at least three separate cases in this court,” says the judge, adding:
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 accurate. I think no such attempt was made because it is apparent that the cases would not be properly joined.
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.
“It’s highly unusual for a judge to suggest Rule 11 sanctions. It shows that this judge really understood the pernicious and dishonest game the RIAA lawyers are playing.
“Rule 11 sanctions can be imposed not only on the record companies but on their lawyers as well. For a lawyer to have on his record that Rule 11 sanctions have been imposed against him, can be a really serious matter. [RIAA legal reps] Holme Roberts & Owen will not be pleased that the lawyers handling the RIAA cases allowed that to happen.
“If Rule 11 sanctions do wind up being imposed against the RIAA lawyers, I don’t think you’ll see any more mass John Doe cases.”
Arista v Does 1-27 - Student lawyers act for students in RIAA case, December 22, 2007
Legal Aid Clinic students – Maine law students vs the RIAA, December 28, 2007
Recording Industry vs The People – Magistrate Judge in U. Maine case votes to sustain complaint but suggests Rule 11 sanctions for RIAA lawyers’ “gamesmanship” on joinder issue, January 28, 2008
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