Nail and Mail - The Bronx

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Warner Bros. Records Inc. v. Berry, No. 07 Civ. 1092-HB, 4/15/08 N.Y.L.J. "Decision of Interest" (S.D.N.Y. decided Apr. 9, 2008).

The court adopted Magistrate Judge's recommendation to deny Plaintiff's default judgment application and dismissed the case.

Plaintiff's alleged that Defendant used KaZaA to download, distribute and make available for distribution the copyrighted recordings of certain artists in violation of the Copyright Act. Over a year before filing the complaint, Plaintiffs served AOL (an ISP), which identified Defendant as the person responsible for the IP address that was using KaZaA. AOL provided Plaintiff's with an address for Defendant in the Bronx, NY. Plaintiffs then hired a process server, whose attempts at service were "unsuccessful"; thereafter, the process server affixed one copy on the property in the Bronx. and depositing a copy of the summons in a first class post paid envelope addressed to the same address.

However, the Court found that service on Defendant was defective and therefore dismissed the complaint. "Here, service was defective under the 'nail and mail' method [CPLR 308(4)] because Plaintiffs' process server both affixed and mailed the summons to Defendant's last known residence."

Though the mailing component of service by "affixing and mailing" may be to the defendant's last known residence, "the 'affixing' component must be to the door of the defendant's actual place of business, dwelling place or usual place of abode, and not to the defendant's last known residence. To blur the distinction between 'last known residence' and 'dwelling place' 'would diminish the likelihood that actual notice will be received by potential defendants.'"

However, the Court did not adopt the Magistrate Judge's recommendation that Plaintiffs be ordered to show cause they they did not violate FRCP 11(b). The Court found that "while Plaintiffs' lawyers should be faulted for failing to keep closer tabs on their process server and for failing to better supervise their paralegal, their actions do not rise to the level of a Rule 11(b) violation. Plaintiffs' lawyers might have been sloppy in their attempts to serve Defendant, but giving them as officers of the Court the benefit of the doubt, all their representations to this Court were...nor for the improper purpose of unnecessary delay."

Student Response to Ex Parte Discovery Request

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The oft-venomous blog "Recording Industry vs. The People" links to this especially interesting memorandum of law in support of a John Doe (college student) defendant's motion to quash the ex parte subpoena issued by the RIAA to Boston University for the disclosure of student's names associated with IP addresses.

(See cases cited therein.)

DOES Anyone Care?

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More. Copyright. Infringement. Actions. Various. Federal Courts.

IP Addresses. John Does. Major Labels.

Some (but not all): Ex parte. Discovery. College ISPs.

Who is Carlos Linares, upon whose application the ex parte applications for expedited discovery are based?

[Atlantic Recording Corporation et al v. Does 1-2; filed 1/31/08 in Calif. Southern District; case no. 3:2008cv00190.
Arista Records LLC et al v. Does 1 - 4; filed 1/31/08 in Georgia Northern District; case no. 1:2008cv00358.
BMG Music et al v. Does 1-19; filed 1/31/08 in Kentucky Western District; case no. 3:2008cv00070.
LaFace Records L L C et al v. Does; filed 1/31/ 08 in Louis. Western District; case no. 3:2008cv00137.
Arista Records LLC et al v. Does 1 - 3; filed 2/1/08 in Missouri Eastern District; case no. 4:2008cv00160.
BMG Music et al v. Does 1-6; filed 1/31/08 in Mississippi Northern District; case no. 1:2008cv000231.
CAPITOL RECORDS, INC. et al v. DOE # 1 et al; filed 2/1/08 in North Carolina Middle District; case no. 1:2008cv0008.
ZOMBA RECORDING LLC et al v. DOES 1-26; filed 2/1/08 in New Jersey, case no. 3:2008cv00566.
Zoomba Recording LLC et al v. Does 1-8; filed 1/31/08 in Ohio Southern District; case no. 3:2008cv00030.]

I Went to College - And Got Sued by the RIAA!

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Another day at the races for the major labels, who yesterday (1/30) filed no less than 7 copyright infringement cases against "John Doe" defendants in various federal district courts.

Here's a highlight from Warner Bros. Records, Inc. v. Does 1-4 (1:08-cv-00120-RLY-TAB; filed 1/30/08 in the Southern District of Indiana):

"The true names and capacities of Defendants are unknown to Plaintiffs at this time. Each Defendant is known to Plaintiffs only by the Internet Protocol ("IP") address assigned to that Defendant by his or her ISP on the date and time of that Defendant's infringing activity...Plaintiffs believe that information obtained in discovery will lead to the identification of each Defendant's true name."

Continuing,

"Although Plaintiffs do not know the true names of Defendants, each Defendant is alleged to have committed violations of the same law (e.g., copyright law), by committing the same acts (e.g., the downloading and distribution of copyright sound recordings owned by Plaintiffs), and by using the same means (e.g., a file-sharing network) that each Defendant accessed via the same ISP. Accordingly, Plaintiffs' right to relief arises out of the same series of transactions or occurrences, and there are questions of law or fact common to all Defendants such that joinder is warranted and appropriate here."

Several queries: first, can plaintiffs allege facts as mere "e.g."s? Their description of the infringing acts is beyond general and vague! Second, when you have 15 or more plaintiffs, how much damages does each actually get? The sheer number of plaintiffs indicates that these suits are meant as a deterrent to on-line infringement, rather than as a means to redress actual injury.

But, the fun doesn't stop. Plaintiffs in the above case also filed an ex parte motion for leave to take immediate discovery on a third party ISP to determine the true identies of the Doe defendants.

"Plaintiffs intend to serve a [Federal Rule of Civil Procedure] Rule 45 subpoena on the ISP seeking documents that identify each Defendant's true name, current (and permanent) addresses and telephone numbers, e-mail addresses, and Media Access Control ("MAC") addresses. Without this information, Plaintiffs cannot identify the Doe Defendants or pursue their lawsuit to protect their copyrighted works from repeated infringement."

A glance at the attached "proposed order" shows that the ISP is Indiana University-Purdue University...so IU students, look out!

Also filed with the motion was a brief and affidavit, with attached exhibits of similar orders granted in other district courts. (S.D. Ind.; W.D.Wis.; N.D. Ill; N.D. Ind.; E.D. Wis; C.D. Ill.)

Faithful readers of OTCS, you guessed it. Virtually identical complaints, ex parte motions (and affidavits from the same individual, Carlos Linares) were filed in the other Doe cases: Elektra Enter. Group Inc. v. Does 1-11, (1:-08-cv-10140-NG; filed 1/30/08; D.Mass); Arista Records LLC v. Does 1-3 (1:08-cv-10139-NG; filed 1/30/08); Atlantic Recording Corp. v. Does 1-14 (1:08-cv-00028-JAW; filed 1/30/08; D.Maine); Arista Records LLC v. Does 1-36 (0:08-cv-00278-DWF-AJB; filed 1/30/08; D.Minn - 2d Div.); Arista Records LLC v. Does 1-5; 3:08-cv-00523-GEB-TJB; filed 1/30/08; order granting ex parte discovery on Princeton University 1/30/08; D.N.J); and Arista Records LLC v. Does 1-10 (5:08-cv-00108-NPM-GJD; filed 1/30/08; N.D.N.Y.; proposed order indicates discovery sought on Ithaca College).

I wonder how the clerks of each of the above courts would feel knowing plaintiffs are filing form-complaints and motions with the court? Are the district courts a processing center for the RIAA?

Another Day at the Races

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Yesterday (1/22/08) was another busy day for the major record labels, with the filing in various federal courts of nineteen (19) copyright infringement actions against P2P users identified by their IP-addresses. Under these cookie-cutter complaints, plaintiffs seek injunctions, statutory damages under the Copyright Act, and legal fees.

At a quick glance, the number of alleged infringements range from approximately 400 recordings to nearly 2,000, and appear to all have occurred in 2007.

What is remarkable is that in each of the courts -- e.g., California Eastern District, Florida Middle District, Georgia Northern District -- the complaints are virtually identical!

With regards to the P2P portion, each had this to say:

Much of the unlawful distribution of copyrighted sound recordings over the
Internet occurs via "peer-to-peer" ("P2P") file copying networks or so-called
online media distribution systems. P2P networks, at least in their most
popular form, refer to computer systems or processes that enable Internet users
to search for files (including audio recordings) store on other users' computers
and transfer exact copies of files from one computer to another via the
Internet, which can include both downloading an exact copy of that file onto the
user's own computer and distributing an exact copy of that file to other
Internet users on the same P2P network. P2P networks enable users who
otherwise would have no connection with, or knowledge of, each other to provide
a sophisticated search mechanism by which users can locate these files for
downloading and to reproduce and distribute files off of their personal
computers.

Users of P2P networks who distribute files over a network can be identified
by using Internet Protocol ("IP") addresses because the unique IP address of the
computer offering the files for distribution can be captured by another user
during a search or a file transfer. Users of P2P networks can be
identified by their IP addresses because each computer or network device (such
as a router) that connects to a P2P network must have a unique IP address within
the Internet to deliver files from one computer or network device to
another. Two computers cannot effectively function if they are connected
to the Internet with the same IP address at the same time.


[**VERIFY ALL CITES**
California Eastern District:
BMG Music et al v. Espinoza; case 1:2008 00040
UMG Recordings, Inc. et al v. Higareda; case 1:2008 00039
Sony BMG Music Entertainment; case 1:2008 00041
Sony BMG Music Entertainment et al v. Evans; case 1:2008 cv 00109
Warner Bros. Records Inc. et al v. Kukendall; case 2008 00043
BMG Music et al v. Espinoza; case 1:2008 00044
Florida Middle District:
Priority Records LLC et al v. Hayes; case 3:2008cv00079
Georgia Middle District:
Zomba Recording LLC, a Delaware limited liability company et al v. Hughes; case 7:2008cv00012
Atlantic Recording Corporation et al v. Helmburg; case 5:2008cv00015
Georgia Southern District:
UMG Recordings, Inc. et al v. Emerson; case 4:2008cv00013
Mass. District:
Sony BMG Music Entertainment et al v. Crespo; case 1:2008cv10093
UMG Recordings, Inc. et al v. Saucier; case 4:2008cv40007
UMG Recordings, Inc. et al v. Straw; case 1:2008cv10092
Tennessee Middle District:
UMG Recordings, Inc. et al v. Adkins; case 3:2008cv00056
Capitol Records, Inc. et al v. Barbiere; case 3:2008cv00055
Warner Bros. Records Inc. et al v. Williams; case 3:2008cv00053
BMG Music et al v. Sharpe; case 3:2008cv00054
UMG Recordings, Inc. et al v. Farris; case 2:2008cv02027
Tennessee Eastern District:
UMG Recordings, Inc et al v. Bush; case 4:2008cv00007]

RIAA File-Sharing Suits - FYI

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OTCS found an interesting article noting that the RIAA has filed 26,000 lawsuits over the past four years against music file sharers. The article summarizes "how the litigation works", and also comments on the "growing cadre of small firms and solo practitioners that has popped up to defend people who claim they have been wrongly accused."

Ross Todd, "Calling the Tunes - A Minnesota Verdict is Sweet Music to a Denver Firm" in The American Lawyer at 20 (Dec. 2007). Article not available on-line.

A Flurry of John Doe Suits

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The past two days saw a "flurry" of law suits filed by major labels in Federal District Court: no less than 17 copyright infringement cases were filed against John Doe defendants and IP-addresses by, collectively -- Zomba, Atlantic, Capitol, Sony BMG, MoTown, Warner Bros. Records, Elektra, UMG, Maverick, and Arista.

Additionally, several suits were filed against actual named defendants - whom were identified by 3rd party investigators for using P2P networks at the defendant's IP-address. (e.g. case no
4:07-cv-04525)
Notably, many of the cases were filed in the Eastern District of Pennsylvania, with the labels (for the most part...) represented by the SAME attorney: Jennifer K. Welsh. Talk about a pay-day! Other courts include New Hampshire, Nebraska, North Carolina, Massachusetts, and Tennessee.
Is there some sort of quota the labels fill before the end of the year?

[UNVERIFIED Case nos.: 1:2007cv00972; 4:2007cv03278; 1:2007cv00416; 5:2007cv03883; 2:2007cv05463; 2:2007cv05464; 2:2007cv05457; 2:2007cv05461; 2:2007cv05467; 2:2007cv05458; 2:2007cv05459; 2:2007cv05456; 2:2007cv05460; 2:2007cv05462; 2:2007cv05465; 2:2007cv05466; 1:2007cv00479; 3:2007cv00481; 6:2007cv00569; 4:2007cv04525; 4:2007cv04527; 4:2007cv04528. ***OTCS did not verify all case numbers; Check case files and citations before citing***]

My My, Hey Hey

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My my, hey hey...what OTCS can miss in ONE DAY!

Arista Records filed 12 - yes, TWELVE - copyright infringement suits in various federal district courts, each against John Doe defendants, between Nov. 27 and Nov. 29, 2007. Presumably, all relate to on-line infringement and the defendants must be identified by their IP addresses.

Additionally, UMG Recordings, Zomba, Sony BMG, and LaFace Records filed John Doe complaints over the same period of time.

OTCS has a full-time job and can't read all the complaints - so who knows what is going on? Anyone? Bueller?

P2P Infringer Identified Beyond Mere IP Address

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In this copyright infringement case filed in the US District Court District of Nevada, the defendants were identified -- beyond their mere IP address -- for alleged unauthorized distribution of 728 sound recordings over a P2P network in September 2005. Notably, the complaint (Exhibit A) only lists one sound-recording per plaintiff (record label), with the corresponding "SR #" (i.e., copyright registration), instead of each of the alleged 728 infringements.

Two things are of interest to OTCS. First, the complaint explains to the court in two paragraphs the technology behind P2P and IP addresses. Second, why the 2+ year delay in filing suit? Were the parties negotiating, or were they just asleep at the wheel?

[Elektra Entertainment Group Inc. et al v. Jaqueline Meredith Walton; 2:07-cv-01557-RCJ-GWF; filed 11/21/2007]

Here is a nearly identical complaint, filed in the District of Massachusetts, for the alleged infringement of 300+ sound recordings in November 2005 over the Kazaa P2P network. Again, the plaintiffs (record labels) spend a mere two paragraphs on P2P/IP addresses, waited 2+ years to file suit (who uses Kazaa anymore?), and only listed 5 sound recordings (Exhibit A, with corresponding copyright registrations) instead of each of the alleged 300+ infringements.

[Virgin Records America, Inc. et al v. Dobson; 1:07-cv-12176-NG; filed 11/21/07]

8 "Does" A Week

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Be wary, John Does. The Recording Industry is coming after you (at least in western Missouri) for copyright infringement on the web (e.g., "online media distribution system") and hoping to discover your true identity based on your IP address alone. Wasn't it just so much easier to identify people when we had Naptster?

[Elektra Entertainment Group, Inc. et al v. Does 1-8, 4:07-cv-00825-JTM, filed 10/30/2007, W.Missouri]