boycott-riaa.com - Article: "Jane Doe" Moves to Quash Subpoena in RIAA filesharing case

"Jane Doe" Moves to Quash Subpoena in RIAA filesharing case

Posted by Mike (Shmoo) on October 1, 2005 at 7:09 AM (printer friendly)

"Jane Doe" Moves to Quash Subpoena in RIAA filesharing case Loud v. Does

Friday, September 30, 2005

On September 29th, in an RIAA p2p file sharing case brought against 74 "John Does" in federal court in Manhattan, Loud v. Does, where a subpoena has been served on the internet service provider (ISP) Cablevision, one of the "Jane Does" made a motion to quash the subpoena.

Her motion is based on the principle that a subpoena will not issue unless the plaintiff has made a showing of a prima facie case, and that the RIAA has no case since its complaint does not allege any specific acts, dates, or times of infringement, as required by law.

Her lawyers argued as follows:

Here, the Complaint alleges in conclusory fashion and upon information and belief that the Doe Defendants used �an online media distribution system� to download and distribute certain alleged copyrighted recordings to the public, and/or to make such recordings �available for distribution to others.� Complaint, � 23 (Rogers Affidavit, Exhibit �B�). The Complaint makes no attempt to describe the specific acts of infringement or the dates and times on which they allegedly occurred. Indeed, the Complaint does not allege any actual instances of downloading or distribution. Nor does the Complaint make any attempt to set forth specific evidentiary facts upon which plaintiffs� purported �information and belief� are based. Trans World Corp. v. Odyssey Partners, 561 F.Supp. 1315, 1323 (S.D.N.Y. 1983); Fountain v. Talley, 104 F.Supp.2d 1345, 1355 (M.D.Ala. 2000) (granting motion to dismiss because critical element of claim was pleaded upon information and belief without alleging facts showing the basis for such belief). The Complaint is therefore subject to dismissal. Marvullo, supra, 105 F.Supp.2d at 230; Brought to Life Music, Inc., supra, 2003 WL 296561 at *1; Plunket v. Doyle, 2001 WL 175252 at *4-6.
Although the Complaint refers to an Exhibit A purportedly listing copyrighted recordings that were allegedly infringed (Complaint, �� 21, 23), no such exhibit is attached to the Complaint in this case. In several similar cases brought by the recording industry against individuals, the complaints contained a list of songs that were purportedly made available for downloading by others through an internet account. Even if such a list had been attached in this case, the Complaint still would not state a claim for copyright infringement. It is well established that there is no liability for infringing upon the right of distribution unless copies of copyrighted works were actually disseminated to members of the public.

Complaint
Jane Doe's Notice of Motion to Quash Subpoena
Affidavit of Morlan Ty Rogers in Support of Motion to Quash
Exhibit A
Exhibit B
Jane Doe's Memorandum of Law in Support of Motion to Quash

The lawyers for Jane Doe are Ray Beckerman, Morlan Ty Rogers, and Daniel A. Singer of Beldock Levine & Hoffman LLP

Posted by Ray Beckerman @ 9/30/2005 09:01:00 AM

User Comments (These do not necessarily reflect the beliefs of this site)


Twoby2	Date: October 1, 2005 @ 7:57 AM Hasn't this technique against the "Cattle Call" complaints already been tried? Is there something new here?

NiceGuy2003	Date: October 1, 2005 @ 10:36 AM What's new is is the RIAA is trying it again. They're claiming infringement but offering no evidence of infringement. Sounds like they're starting to get desperate.

captdunsel	Date: October 1, 2005 @ 1:11 PM they won't be desperate as long as 753 out of 754 people pay them off each time they do one of these mass filings

gdZiemann	Date: October 1, 2005 @ 2:14 PM "Is there something new here?" Just people with enough intelligence to know that the RIAA cannot possibly prove their case. "Sounds like they're starting to get desperate." They're not desperate. They are simply incompetent. They've always been incompetent. They can't even do simple math, much less law.

dogpile	Date: October 1, 2005 @ 8:38 PM Just wondering. Does the RIAA also list the movies and songs that were infringed upon by the accused?

independentm...	Date: October 2, 2005 @ 3:43 AM I would imagine they would have to itemize what they claim was infringed. A better question is "do they actually hold those copyrights?"

NiceGuy2003	Date: October 2, 2005 @ 6:44 AM Dogpile, the MPAA would list movies, bt the RIAA is required to list the songs, dates downloaded and whether or not the files were shared with others in their filings. You can't just say "That person downloaded something of ours" and it hold up in court.

Dreddsnik	Date: October 2, 2005 @ 10:06 AM "whether or not the files were shared with others in their filings." This one's pretty important. I will see if I can find it but, it has ALREADY been been found by a judge that a copyright holder can't infringe on their own copyright. This means that the "evidence" gathered by their paid spies is worthless, since their spies were AUTHORIZED to download by those representing the "holders". Admit nothing, demand proof.

dogpile	Date: October 2, 2005 @ 5:35 PM NiceGuy2003: Thanks for the info.

mroop	Date: October 2, 2005 @ 11:47 PM "I will see if I can find it but, it has ALREADY been been found by a judge that a copyright holder can't infringe on their own copyright." You said the exact opposite a couple weeks ago. So were you lying then or are you lying now? Please make up your mind already. It's getting old. Nothing you say can be trusted.

pinemikey	Date: October 3, 2005 @ 12:09 AM I would imagine they would have to itemize what they claim was infringed. A better question is "do they actually hold those copyrights?" Also, to this, Shmoo...If they do "own" the copyrights then how does that affect the artists' relationships with their labels? Last April George brought forth the argument that the Music cartel don't really want to show ownership of copyright because it would open up a huge can of worms with their artists. From that thread... ""Featured artists like Don Henley, Sheryl Crow, and others immediately organized and complained, through the Recording Artists Coalition. They rightly argued that Universal, along with most other recording companies, was claiming more than the work-made-for-hire statute permits." They settled out of court, thus keeping the entire issue of copyright ownership out of the record." Is part of that settlement an agreement that the RIAA will pursue litigation against consumers only up to a point? That is, as a deterrent campaign only? Speculation of course, but one of these cases going to trial might bring the previous settlement to light.

independentm...	Date: October 3, 2005 @ 2:46 AM "If they do "own" the copyrights then how does that affect the artists' relationships with their labels?" It don't change a damn thing in that regard... I mean, if the artist was unlucky/stupid enough to give the RIAA/label the right to sue the fans... "Last April George brought forth the argument that the Music cartel don't really want to show ownership of copyright because it would open up a huge can of worms with their artists." "They settled out of court, thus keeping the entire issue of copyright ownership out of the record." EXACTLY the thing I was getting at. A question that needs a definate answer. (Damn, you are still sharp pinemikey!)

Dreddsnik	Date: October 3, 2005 @ 11:00 AM Mroop. a troll a hairy troll ... Mroop, a troll with great big buuuuuns .. Glad to see you have nothing better to do than pound on all of my posts :) Grr arrgh.