Labels Participate in Judicial Forum, Waive Arbitration

Lockett v. Tuff City Records, No. 602900/08, NYLJ 9/25/2009 "Decision of Interest" (Sup. Ct., N.Y. Co. Sep. 21, 2009)

Defendants, record labels and their principals, waived right to arbitration by actively participating in judicial forum. Plaintiffs' action sough monies allegedly owed for royalties. Defendants answered, but did not plead arbitration as an affirmative defense. Moreover, the arbitration demand was made nearly eight months into the litigation, after Defendants had made discovery demands. Additionally, defendants failed to establish that plaintiffs' claims were subject to the alleged arbitration clause in a 1986 recording contract because the songs at issue were recorded prior to 1986. Thus, Plaintiffs' motion to permanently stay arbitration granted.

The Court also denied defendants' motion to dismiss for misjoinder of plaintiffs; instead, the court severed the individual plaintiff's claims and ordered them to obtain a no-fee index number and serve their own complaint within 30 days.

Lastly, the Court denied defendants' motion to remove the action to Small Claims court; and denied both plaintiffs' and defendants' motions for sanctions.

Improper Joinder of Doe Cases

From the Bloomberg IP Report, Vol.2, No. 2, p. 8-9 (Jan. 12, 2009)

District of Connecticut Finds Record Companies Improperly Joined Doe Defendants in Two Closely Related Peer-to-Peer File Sharing Cases

Synopsis: In two closely related actions, the U.S. District Court for the District of Connecticut determined that plaintiff record companies improperly joined doe defendants in copyright
infringement suits involving peer-to-peer file sharing. The court also held, however, that the record labels could immediately serve subpoenas on the Internet Service Providers (ISPs) to
determine the doe defendants’ identities.

Analysis of: Arista Records, LLC v. Does 1-4, No. 08-CV-01280, 2008 BL 273554 (D. Conn. Dec. 9, 2008); and Interscope Records v. Does 1-6, No. 08-CV-01284, 2008 BL 273554 (D. Conn. Dec. 9, 2008).

Improper Joinder of Does in RIAA/P2P Litigation

Arista Records, LLC v. Does 1-11, No. 07-CV-02828, 2008 BL 253292 (N.D. Ohio Nov. 3, 2008).

Summary: Northern District of Ohio Finds Record Companies Improperly Joined Doe Defendants in Peer-to-Peer File Sharing Case

Diverging in opinion from its Southern District counterpart, the U.S. District Court for the Northern District of Ohio held that the Doe defendants in a music industry file sharing case
were improperly joined. The court reasoned that despite arguments and holdings to the contrary, addressing the issue of joinder was both legally and practically appropriate prior to
the identification of the Doe defendants, and that efficiency concerns should not supersede the requirements of the Federal Rules of Civil Procedure. Thus, the court converted defendant Doe 9’s motion to dismiss for improper joinder into a motion for severance and severed all of
Doe defendants, save Doe #1, from the current action.

Bloomberg law report.

RIAA Responds to California Joinder Ruling

In response to a California federal judge rejecting joinder of John Does 2-5 in a P2P suit filed by the RIAA, the RIAA has simply increased the number ofcases it files in California.

In the California Central District, for example, there were 19 cases filed on February 21, 2008 by the RIAA against individual Does, each numbered "1" through "19" in the caption.

Judicial economy?

[In no particular order...

John Doe # 16Case Number: 2:2008cv01181
John Doe # 4Case Number: 2:2008cv01157
John Doe # 14Case Number: 2:2008cv01172
John Doe # 18Case Number: 2:2008cv01190
John Doe # 7Case Number: 2:2008cv01160
John Doe # 2Case Number: 2:2008cv01155
John Doe # 17Case Number: 2:2008cv01182
John Doe # 11Case Number: 2:2008cv01166
John Doe # 19Case Number: 2:2008cv01192
John Doe # 13Case Number: 2:2008cv01170
John Doe # 8Case Number: 2:2008cv01163
John Doe # 9Case Number: 2:2008cv01164
John Doe # 1Case Number: 2:2008cv01154
John Doe # 10Case Number: 2:2008cv01165
John Doe # 5Case Number: 2:2008cv01158
Doe # 6Case Number: 2:2008cv01159
John Doe # 15Case Number: 2:2008cv01180
John DoeCase Number: 2:2008cv01156
John Doe # 12Case Number: 2:2008cv01168]

Joinder in DOE Suits

A California federal judge rejected joinder of John Does 2-5 in a P2P suit filed by the multiple record labels. See Rules 20 and 21 of the Federal Rules of Civil Procedure. In its order denying plaintiff's motion for reconsideration, the court cited authority for its holding:

...numerous courts have held the opposite: that joinder of defendants who allegedly downloaded music using the same ISP and the same file-sharing program is improper. See, e.g., Interscope Records v. Doe, No. 04-0197 (M.D. Fla. Apr. 1, 2004) (severing defendants who used the same ISP and same file-sharing program); see also BMG Music v. Doe, No. 06-CV-1579 (N.D. Cal. July 31, 2006) (severing defendants who used the same ISP); BMG Music v. Doe, No. 04-650 (E.D.Pa. Mar. 5, 2004) (same); Twentieth Century Fox Film Corp. v. Doe, No. C-04-4862 ("[The allegation that defendants used the same ISP] amounts to no more than a claim that ten unrelated defendants engaged in distinct and unrelated conduct.").

Analysis by Recording Industry v. the People here.

[Sony BMG Music Entertainment v. Does 1-5; No. Cv-07 2434-SJO (C.D.Cal denying plaintiff's motion for reconsideration entered Sep. 4, 2007) (Docket No. 9)]