"All in all, this was a dark moment for our country."
That's New York lawyer two John Does, one from the Southwest the other from New York, teamed up in Manhattan to fight back against the Big Four Organized Music cartel's RIAA (Recording Industry Association of America).
Beckerman represented both Does.
"I'm very disappointed in the proceedings," he told p2pnet. "I was hoping for a full and fair opportunity to air the landmark issues that were before the court. Instead, it seemed that the court wasn't familiar with the facts or the law, and placed a burden on the defendants to disprove the unsupported allegations the plaintiffs' counsel had irresponsibly made in their complaint and discovery application.
"This approach of course finds no support anywhere in our legal system, and was clearly erroneous.
"The judge first indicated it was his understanding that the plaintiffs had evidence that the defendants had made unauthorized downloads. When the RIAA's counsel - to his credit - admitted that the evidence showed only downloads by plaintiffs' own investigators, the judge then ruled that the RIAA is entitled to bring lawsuits to find out if the defendants had in fact downloaded the songs illegally, and cut off the oral argument.
"The judge also indicated that he was disinclined to believe anything I would say because I had said that the RIAA's lawsuits 'wreck people's lives'.
"I don't think that was an appropriate approach for a judge to take, especially on such important issues. If the Court's ruling were appealable, I'd file an appeal. Unfortunately it isn't. And it will never be subject to review by an appeals court, because the RIAA will - as it always does - discontinue the John Doe lawsuit."
Among the issues in the motion papers were:
whether the evidence the RIAA had submitted in support of the ex parte
order sufficiently made out a prima facie case;
whether the evidence the RIAA submitted was technically valid;
whether merely 'making available' is a copyright infringement;
whether the complaint in the action adequately pleads copyright
infringement; and whether there was any basis for joining 149 different defendants in one case.
During the argument, Owen first said he understood the labels had alleged songs were downloaded by the Does, says Beckerman, going on:
"When the RIAA's lawyer conceded that the downloads were by the RIAA's own investigators, the judge said the RIAA had the right to find out if in fact the defendants had downloaded them too.
"When, as the defendants' lawyer, I brought to the Court's attention that files on the defendants' computer might have been downloaded lawfully, the Judge cut off my argument, and said that was the weakness in the defendants' case - the word 'might'. The judge then indicated he was denying defendants' motion.
"Earlier in the argument, when I said that the plaintiffs' lawsuits were 'wrecking people's lives', the Judge asked where defendants' lawyer was getting that from, and indicated that in view of that statement he was inclined to disbelieve anything defendants' lawyer might say."
As it did in Motown v. Does 1-99 , the RIAA, "hesitated to adopt the strategy it had employed in Atlantic v. Does 1-25, and refrained from introducing any evidence in opposition to the defendants' motion," states Beckerman. In Atlantic, it introduced testimony by the RIAA's Jonathan Whitehead which contradicted his first statement when he'd tried to rebut the attack by computer programmer Zi Mei on the legitimacy of the RIAA's "investigation".
Here's an excerpt from transcript. 'Gabriel' is Holme Roberts & Owen lawyer Richard Gabriel.
THE COURT: You are skipping over one sentence, which it reads that: "Exhibit A identifies on a defendant-by-defendant basis that each defendant has, without the permission or consent of the plaintiffs, downloaded."
MR. GABRIEL: Distributed and --
THE COURT: But you don't need to go beyond "downloaded," do you?
MR. GABRIEL: I submit we don't. What the law requires, contrary to what Mr. Beckerman says, is we need to allege in a Complaint that we own a valid copyright, that we have registered the valid copyright, and that the plaintiffs had violated exclusive rights.
THE COURT: Isn't that the end of it?
MR. GABRIEL: And we have done that.
MR. BECKERMAN: Ask him to identify which songs the defendant downloaded.
THE COURT: He did. He does in Exhibit A.
MR. BECKERMAN: No, he does not.
THE COURT: Yes, he does.
MR. BECKERMAN: If he does, he misrepresents to the Court. Ask him what basis he has --
THE COURT: Counsel, look at Doe 37. The artist is named what, Linkin Park, "One Step Closer."
MR. BECKERMAN: Your Honor, Mr. Gabriel described to your Honor the investigation that he conducted. He said to you -- he represented to your Honor that the investigation consisted of his investigators at MediaSentry, using some proprietary software and techniques, went on and downloaded these songs, and that's what Exhibit A is. He's saying that the plaintiffs' agents downloaded those songs.
THE COURT: He said the defendants downloaded it. They allege the defendant downloaded.
MR. BECKERMAN: He has no basis for alleging that and he told your Honor what the basis was.
THE COURT: He said if you go to trial and it doesn't end up being proven, you have won your case.
MR. BECKERMAN: But he is here to admit to you that he has no evidence of anybody -- of the defendants having downloaded those songs. He has no clue as to how the defendants --
THE COURT: Counsel, would you tell me how you get, for example, to Doe 37? What I'm hearing here I'm having trouble putting in some frame of rationality.
MR. GABRIEL: Yes, your Honor.
THE COURT: Tell me, how do you get to the seven or eight songs for Doe 37?
MR. GABRIEL: We find these particular Doe share files, as a number of all the other Does. We then will take a picture of what is in their computer shared file.
THE COURT: Showing where it went?
MR. GABRIEL: It doesn't show a line. We know it got to their computer, and we believe that provides a sufficient Rule 11 basis for asserting downloading. Somehow it got to their shared drive, and we do take it and make -- we then download ourselves so we can confirm that it is our copyrighted recording by listening to it, by making sure this is our recording.
THE COURT: Run this by me again, please. You hav somebody go where?
MR. GABRIEL: Right into Kazaa, one of these programs like you or I could.
THE COURT: Right.
MR. GABRIEL: And then they will look for people's shared files who have a large number of music files.
THE COURT: How do you get, for example, to Mariah Carey's "One Sweet Day"?
MR. GABRIEL: By looking at the person's shared file.We get the whole shared file, and not everything --
THE COURT: But tell me, whose shared file?
MR. GABRIEL: We get the defendant's shared file, the shared file on the computer associated with the defendant.
THE COURT: With at this point only identified as 37?
MR. GABRIEL: That's correct. Actually, more specifically identified by this Internet protocol address that I referred to you.
THE COURT: I got you.
MR. GABRIEL: So we know the numbers --
THE COURT: You look in that person's shared file?
MR. GABRIEL: Right.
THE COURT: And you see that they've got Mariah Carey in there?
MR. GABRIEL: Right.
THE COURT: OK. And there is no authorization for that?
MR. GABRIEL: Right.
MR. BECKERMAN: Nope, your Honor, they have no knowledge of how that file got there. It might be completely lawful. It could be a lawful --
THE COURT: It might be, but you know, if the bank robber is running away from a bank in a car and he's got a bag with $5,000 in the back, he might say I took that out as a loan, and, therefore, you've got an issue of fact as between him and the bank as to whether this isn't the guy they gave $5,000 at the point of a gun. So that might be -- what you just said is in my opinion what kills your position here. They've got this and if it might be, and it is logical that it is and entirely possible that it could be, they want to know who it is and you want to depose him, right?
MR. BECKERMAN: No, they want to sue him.
THE COURT: Sue him, of course.
MR. BECKERMAN: Your Honor, the plaintiff has the burden of establishing that they have a case. If your Honor --
THE COURT: I find on these papers they have established that, and, therefore, your motion to suppress these subpoenas is denied.
Also See: Ray Beckerman - Judge Says He Will Deny John Does' Motion to Vacate and Quash in Warner v. Does 1-149, May 19, 2006 two John Does - Big Music sues 'em all, April 3, 206 Jonathan Whitehead - Did the RIAA try to con a court?, February 28, 2006 Holme Roberts & Owen - RIAA's new hatchet men, March 13, 2006
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