p2pnet news | RIAA News:- Warner Music, EMI, Vivendi Universal and Sony BMG’s RIAA has once again been trounced in a joinder case.

“These kinds of cases allow the corporate enforcer to efficiently terrorise a number of people simultaneously,” said p2pnet recently.

Lumping victims together also allows the RIAA to save money.

Maine magistrate judge Margaret Kravchuk recently criticised the Big 4 agency for using “gamesmanship” tactics in joinder cases —- cases where defendants are linked together.

Now, another judge has accused the RIAA of using the federal judiciary, “as a hammer by … to pound settlements out of unrepresented defendants.”

In SONY v Does 1-5, district judge S. James Otero not only threw out as to Does 1-5, based upon the long line of cases which ruled the RIAA has no right to join the John Doe defendants in a single case, he went on to rule that the plaintiff record companies were also improperly joined.

Says Recording Industry vs The People:

“On the issue of misjoinder of defendants, the RIAA made a reconsideration motion was denied.

“On the issue of misjoinder of plaintiffs, Judge Otero ordered the RIAA to show cause why the case should not be dismissed as to the additional record companies; the RIAA agreed, and the case was dismissed as to those 6 plaintiffs.

“As to Doe #1, the Court granted the plaintiff expedited discovery, but ordered that the defendant would have 21 days from getting notice of the subpoena to make a motion to quash.”

From the denial motion:

Although Plaintiffs contend that the Defendant Does may question the propriety of joinder after they are identified, it is this Court’s experience that an 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.

This Court has already expressed its concern that in the thousands of peer-to-peer lawsuits filed by the record companies “potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by [the record companies] to pound settlements out of unrepresented defendants.”

In an earlier case, Otero showed, “genuine concern over the one-sidedness of RIAA litigation,” said Recording Industry vs The People, quoting from the decision.

Among the clips:

This lawsuit is one of thousands of “peer to peer” file-sharing lawsuits which have been filed in the federal courts over the last few years. In most of these cases, as in this one, the plaintiffs are represented by counsel and the defendants are not…..

…

In other lawsuits, the same Plaintiffs are currently litigating legal issues which, if determined adversely to the Plaintiffs and applied to this lawsuit, would result in this lawsuit being terminated or the damages being capped at a very low amount. In the Southern District of New York, in the case Elektra Entertainment v. Denise Barker, Judge Karas is considering a motion to dismiss on the basis that the pleadings in these file-sharing cases do not sufficiently allege copyright infringement. Elektra Entm’t Group, Inc., etal. v. Denise Barker, No.05-7340 (S.D.N.Y. Jan. 26,2007) (minutes stating argument held and decision reserved). In the Eastern District of New York, in the case UMG Recordings v. Marie Lindor, a case which involves two of the five Plaintiffs in the present case, Judge Trager allowed an amended answer to be filed which states the affirmative defense that the statutory damages sought substantially exceed the 10:l ratio of awarded damages to actual damages permitted by the Supreme Court in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 US. 408,425 (2003). UMG Recordings, Inc., etal. v. Marie Lindor, No. 05-1095 (E.D.N.Y. Nov. 9,2006) (order granting motion to file second amended answer)…….In the Western District of Oklahoma, in the case Capitol Records, Inc, v, Debbie Foster, a case which involved four of the five Plaintiffs in the present case, Judge West awarded attorney fees to the defendant, after the plaintiffs continued to litigate even after it was shown that it had been another user of the defendant’s Internet access account who had engaged in the filesharing. Capitol Records, Inc., et al. v. Debbie Foster, etal., No. 04-1 569 (W.D. Okla. Feb. 6,2007) (order granting attorney fees). Certainly, there are even more legal arguments being raised against the plaintiffs in these file-sharing cases. The concern of this Court is that in these lawsuits, potentially meritorious 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 unrepresented defendants.

In this case, the First Amended Complaint names Defendants Catherin O’Brien and Michael Tubman, whereas the original Complaint merely named Defendant O’Brien. The declaration of Jonathan G. Fetterly filed on February 20,2006 alleges that the multiple parties in this case are properly joined but says nothing specific to the facts of this case. There are no factually specific allegations that the defendants are in any way related to each other, acted in concert, or acted as a group in the offending actions. The Western District of Texas, encountering the problem that plaintiffs in file-sharing suits were naming unrelated parties in order to economize on filing fees, ordered that all but the first named defendant be dismissed from the file-sharing cases. Fonovisa v. Does 1-41, No. 04-550 (W.D. Tex. Nov. 17,2004).

The Plaintiffs are ordered to show cause in writing no later than March 21,2007 as to why Defendant Michael Tubman should not be dismissed from this action. The First Amended Complaint names Defendant Michael Tubman without dismissing the case against Defendant Catherin O’Brien. It is possible that the Plaintiffs are engaging in the same tactics as they did in the Oklahoma case mentioned above. The Plaintiffs are ordered to show cause in writing no later than March 21,2007 as to why Defendant Catherin O’Brien should not be dismissed from this action.

In the Kravchuk “gamesmanship” case, the RIAA allegation that all the claims came from the same series of transactions or occurrences because the defendants all used the same ISP, “sounds good,” said 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”.

Slashdot it!

Also See:
p2pnet – Judge accuses RIAA of ‘gamesmanship’, January 29, 2008
Recording Industry vs The People – California Judge dismisses RIAA case for misjoinder of defendants AND misjoinder of plaintiff record companies in SONY v. Does 1-5, February 14, 2008
Recording Industry vs The People – Thoughtful decision in 2007 California case, Elektra v. O’Brien, January 18, 2008

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