Log in

View Full Version : Warner v. Does 1-149

2006-05-24, 22:23
Thanks to Ray Beckerman's website or blog known as Recording Industry vs The People (http://recordingindustryvspeople.blogspot.com/), I was given the information about a court hearing of Warner v. Does 1-149 that was open to the public. The location was the Federal Courthouse at 40 Centre Street in Manhattan, Friday May 19 at 14:30 in room 1106.

So I went there and I found that there were three members of the RIAA team in the court room. The lead lawyer was named Richard Gabriel. He also had an assistant lawyer J. Christopher Jensen and a representative of the RIAA Matthew Oppenheim with him. Only the lead lawyer Gabriel presented the case before the judge.

On the side of the defense was Ray Beckerman, and he was alone in presenting the case before the judge. Sitting in the public section was myself plus another member of the public whose name I forget, though I recall that he mentioned having some kind of affiliation with Creative Commons. Also sitting in the public section was Ty Rogers, who is another lawyer that works along with Ray Beckerman.

The judge presiding over the case was judge Richard Owen. The case presented before him was an attempt by the RIAA lackeys to get the actual information from the ISPs as to who the account holder associated with a particular IP address was. The RIAA presented what it called evidence to support its contention that these people were guilty of copyright infringement. The RIAA had IP addresses and wanted actual names behind those IP addresses. Ray Beckerman and Ty Rogers tried to prevent the release of such information. Once such information were to be released under the judge's approval, the RIAA would drop its John Does lawsuit and would then sue the actual people.

In the presentation by Gabriel, he claimed that a contractor company named Media Sentry downloaded mp3s on Kazaa from the John Does and actually had someone check them to verify their authenticity. This was a new revelation, as before in filesharing cases the "evidence" presented was merely taking note of what people were sharing or making available in their shared directory. Gabriel refused to discuss the details of Media Sentry's evidence-gathering methods, saying that it was "proprietary". He accused the John Doe filesharers of both uploading and downloading. One of the songs cited was a Mariah Carey song. For him the presence of mp3s on a hard drive was an indication that they had been downloaded "illegally" from a filesharing network. The lawyer interchangeably used the terms uploading and downloading as if they were the same thing. The judge was easily duped and his closed feeble mind could not make a distinction between uploading, downloading, and sharing.

The lawyer Gabriel also referred to Beckerman's website at one point and said that he found it interesting that Beckerman would always deny the strength of the evidence rather than deny that the people had engaged in "illegal" filesharing. And later on the judge latched onto the fact that Beckerman said that mp3s "might be lawful" if found on a person's computer. Because of the doubt conceded by Beckerman, the judge decided that the cases should go to trial and ordered the anonymity of the John Does removed.

But let me backtrack to describe Beckerman's defense presentation before the judge, which came after the plaintiff RIAA presentation.

Beckerman argued that the RIAA evidence was weak, because as explained by Gabriel, the methodology of evidence-gathering was proprietary and could therefore not be substantiated or challenged. Beckerman in his argument for preserving the anonymity of the John Does, said that the lawsuits would wreck the lives of those being sued. The judge objected to such a choice of words. He then warned Beckerman that such a choice of words caused him to no longer believe anything else that Beckerman would say in the court room. Beckerman defended his choice of words by pointing out that the lawsuits would cost thousands of dollars and that it would be difficult for middle class or poor people to afford. The judge then countered that Mariah Carey was the real victim because the John Does were downloading her songs without paying for them.

I have written enough to show that the title of "Dishonorable" would have been well suited for the wretched creature in black robes by the name of Richard Owen, whose very presence in the courtroom was an injustice. He most definitely was biased in favor of the RIAA position. And in fact as it was later pointed out by rufus in the blog commentary of the posting (http://recordingindustryvspeople.blogspot.com/2006/05/judge-says-he-will-deny-john-does.html) of Beckerman regarding the hearing, as this one article shows here (http://www.usoperaweb.com/2002/june/owen.htm), the Dishonorable Judge Owen had a conflict of interest by being an opera writer. There would be no basis for an appeal of the judge's decision, since the RIAA having been granted the personal information of the John Does that it had requested, would then drop the case against the John Does.

When the judge pronounced the sentence "motion denied", there was no dramatic slamming of a gavel. He simply turned off his desk light and left the court room. I sat there stunned, realizing the gravity of the judge's decision and as a witness to a great injustice which occured before my eyes. I was also furious at the judge when he pronounced his sentence.

Later on I was standing at the outside of the Courthouse with the benevolent party, discussing the case some more. I observed the RIAA team of three lackeys come out of the Courthouse while we were standing there. The lead lawyer and the other RIAA lackeys cordially greeted Beckerman, to which Beckerman responded in kind. I think that may be routine behavior in the profession of lawyers. I do not doubt Beckerman's commitment towards the benevolence of filesharers. I noticed that after the case was over, he was still discussing it with Ty Rogers on the northbound number six train. Beckerman is passionate about what he believes in and is not just in it for a pay check or for lawyer's fees.

I have to say myself that as a person removed from the professional relationship with the RIAA lackeys, I felt no common ground, good will, or courtesy towards them. I would have gotten a great rush of happiness and satisfaction if they had tripped and fallen down the stairs of the Courthouse and had split their heads wide open.

For related topics on this site, see:
RIAA lawsuits: one year later (http://www.3-3-3.org/forum/showthread.php?t=706) 2004-09-08
having mp3s on a hard drive is not copyright infringement (http://www.3-3-3.org/forum/showthread.php?t=787) 2004-10-18
Fight Goliath (http://www.3-3-3.org/forum/showthread.php?t=963) 2006-01-06
which is illegal: uploading or downloading? (http://www.3-3-3.org/forum/showthread.php?t=971) 2006-03-01

2006-05-28, 16:36
source (http://www.ilrweb.com/viewILRPDF.asp?filename=warner_does1-149_060519transcript)

060519 transcript
(212) 805-0300



Plaintiffs, New York, N.Y.

v. 05 Civ. 8365 (RO)

DOES 1 - 149,



May 19, 2006
2:27 p.m.



District Judge


Attorneys for Plaintiffs
- and -
Attorneys for Plaintiffs

Attorneys for Defendants Does 37 and 61
- also present -
Matthew Oppenheim

THE COURT: OK. All right. So this is a motion, what, by defendants?

MR. GABRIEL: Yes, your Honor.

MR. BECKERMAN: Yes, your Honor. It is a motion by two John Does in this case to vacate the ex parte discovery order that has heretofore been issued on an ex parte basis and to quash the subpoena issued pursuant to that and also to dismiss and sever as to John Does 2 through 149.

THE COURT: You are Mr.?

MR. BECKERMAN: Beckerman.

THE COURT: Beckerman, OK. Go ahead.

MR. BECKERMAN: Your Honor, the federal courts have a plague in the courts right now and this is the first wave of -- the John Doe lawsuits brought by these record industries is the very first wave. If this wave, which is almost always done on a purely ex parte basis, if the Court were to address these issues now and stop the improper practices that are being used, the second wave would be a much more civilized and orderly, normal legal judicial proceeding under the copyright law.

What they do in this first wave is, number one, they bring a sham lawsuit. This is a sham because they will never prosecute this lawsuit. They know that most of the defendants, if not all of them, are not even subject to venue and jurisdiction in this court. Anybody can take an IP address and go to the various Web sites that trace IP addresses and know the state and the region of the state in which that IP address was assigned.

In this case, for example, the two defendants who I represent, who were lucky enough to find out about this and had the resources to contact us, live outside the Southern District of New York. One of them lives in Texas and the other one lives in the Eastern District of New York.

In the case of Cox Communications -- I was at a presentation by counsel for Cox Communications where he explained that Cox Communications, which is the analogue for Time Warner, for other cable subscribers, has their corporate office in the Northern District of Georgia and he said that Cox Communications does not have a single subscriber in the Northern District of Georgia. Every time one of these John Doe cases is brought involving Cox Communications, it is brought where the corporate headquarters are in the Northern District of Georgia and the plaintiffs know that the defendants are not in that area.

So then what happens is the case is based on a boilerplate complaint which does not state a claim for copyright infringement. It says that the defendants downloaded, distributed and/or made available for distribution certain files. However, they cannot cite any instance of any downloading or of any distributing. They actually do not cite any instance of making available for distribution, but with the exhibits within the four corners --

THE COURT: Could you stop a minute? The article that is downloaded, I'm assuming, is a piece of music, right? Right?

MR. BECKERMAN: There is no downloading.

THE COURT: That is what the claim is. The claim is, you were saying that this is a nothing --

MR. BECKERMAN: This is a conclusory allegation --

THE COURT: I know. But if somebody downloads something, that is a taking of the music that is downloaded, correct?

MR. BECKERMAN: It might be a copyright infringement, depending on the type of downloading.

THE COURT: That is what I am saying, and so --

MR. BECKERMAN: But they don't allege any downloads. They don't have any specific instances.

THE COURT: They do. Of course they do.

MR. BECKERMAN: No, they just have a conclusory allegation about it.


MR. BECKERMAN: They have a conclusory phrase that says downloading, distributing and/or making available for distribution. The fact is they do not know of any instance of downloading in this complaint. They do not know of any instance of distributing in this complaint. And what they do know of is that somebody had made certain files available to be shared through an Internet address that had been traced to this defendant.

And all they know about the defendant is that the defendant paid for an Internet access account that they, through some mysterious means, which they have never disclosed to the Court, have traced to a particular defendant.

THE COURT: What would you have them do?

MR. BECKERMAN: I would have them bring a lawsuit when they know of at least one act of infringement by a defendant rather than pretending to this Court in a sham complaint that they know something they don't know. That's what I would have them do, as would the Court, that a lawyer under Rule 11 is supposed to conduct an investigation and to establish that they have an actual meritorious claim of copyright infringement against the defendant before filing such a complaint.

THE COURT: I suppose I had better defer all of this until we hear from the other side, but, for example, taking Exhibit A to the Complaint for Doe 37, right, there is a claim of the taking of a song by Mariah Carey called "One Sweet Day."

MR. BECKERMAN: Not a taking, your Honor. They do not know if that song file was ever unlawfully uploaded or copied by anyone, nor do they know --

THE COURT: Let me hear them tell me what they do know and we will then deal with that, but we'll get there. Because how did they get there?

MR. BECKERMAN: They already have told your Honor, they already submitted on an ex parte basis some gobbledygook which your Honor, not having any defendant there to correct, to call to your Honor's attention what they had done, your Honor signed it.

Now, the showing that they made is a fake. In describing their investigation, they put in a conclusory opinion statement by some guy as to what his investigators allegedly told him, and this guy is some record industry executive who has no -- there are no credentials specified as to why the Court should even be considering his opinion testimony. And then as we proved in our moving papers, those statements that were made to your Honor were completely without any reliability and they were falsely presented to the Court.

THE COURT: Where do you say that?

MR. BECKERMAN: That is what our motion is about.

THE COURT: I know. Tell me where in your papers that statement is made.

MR. BECKERMAN: The affidavit of Zi Mei, he is a computer programmer and he was our technical expert, and he spells out in detail throughout his affidavit -- his affidavit focuses on one issue, which is the scientific unreliability of --

THE COURT: Where do I find that?

MR. BECKERMAN: Under the notice of motion, there are two affidavits.


MR. BECKERMAN: The affidavit of Morlan Ty Rogers, which essentially summarizes --

THE COURT: He is a lawyer. Are you telling me it is a statement of some executive or investigator or somebody?

MR. BECKERMAN: No, our affidavit of Zi Mei is an affidavit of a computer programmer --

THE COURT: Where do I find that?

MR. BECKERMAN: There is a Notice of Motion. Underneath the Notice of Motion, there is an affidavit of Morlan Ty Rogers, and underneath is the affidavit of Zi Mei.

THE COURT: What is the letter number?

MR. BECKERMAN: The letter?

THE COURT: Yes. Is it Exhibit A, B, C, D, E, F, G, which one?

MR. BECKERMAN: What letter?

THE COURT: You said it is --

MR. BECKERMAN: It is not an exhibit.

THE COURT: It is in your Notice of Motion?


THE COURT: OK. Which exhibit?

MR. BECKERMAN: There are two affidavits in the Notice of Motion.


MR. BECKERMAN: First there is the affidavit of Morlan Ty Rogers and the second one is the affidavit of Zi Mei. Ty Rogers' affidavit is nine pages and then the Zi Mei affidavit --

THE COURT: That is what I was asking you.

MR. BECKERMAN: Yes. Now, the most important -- in the affidavit of Morlan Ty Rogers, there is one important factual thing which is the admission by the plaintiffs, in testimony they gave before the Federal Trade Commission, that people who used this file sharing software, these consumers that they are suing, that they have no idea which files on their computer were being shared, and they even cite a study which showed that most of these people think that they are not using file sharing and then find out that every single file on their computer is actually available for sharing.

So they themselves admit, in that testimony, that these defendants don't even -- if their files are available, they don't even know that they are available, which would preclude, of course, copyright infringement.

Then the affidavit of Zi Mei is all factual, and it goes into his explanation of why the RIA's methods are completely unreliable.

In response, the RIA did not submit any factual rebuttal to the affidavit of Zi Mei. So for purposes of this proceeding, the affidavit must be conceded, except to the extent that their original ex parte application rebuts it.

All your Honor has on the facts, in other words, is the original declaration of Jonathan Whitehead, which the record companies submitted, and the affidavit of Zi Mei tearing it to shreds.

THE COURT: Where is the paragraph in the complaint that says that this is an infringement but we don't know who Doe blah-blah-blah-blah-blah is? Do you have that for me at the front table?

MR. BECKERMAN: Yes. Well, paragraph 24 of the Complaint is the only place that, you know, tells you what it is they are actually suing for.


MR. BECKERMAN: And it is in the first sentence.

THE COURT: Well, the second sentence does go on.

MR. BECKERMAN: It is the same boilerplate that they use in all 19,000 other cases.

THE COURT: I know but that is one of the reasons that we are here is that they want to find out what boiler Doe so and so happens to be living in. That's what we are here about, right?

MR. BECKERMAN: Yes, that's --

THE COURT: OK. If we know who that is --

MR. BECKERMAN: But they have contended --

THE COURT: I know. Maybe then they want to take a deposition of Doe 37, or whatever, is that what you are about?

MR. BECKERMAN: When they originally started these cases, they were bringing suit -- they were serving subpoenas under the Digital Millennium Copyright Act, and then the courts told them they had no basis for doing that. So then they invented another basis for serving subpoenas, which is pretending that they had a case against these people and then serving this ex parte application for discovery.

But where is the case? Where is the liability? Where is the showing that these defendants actually infringed anybody's copyright. Where are the specific acts of infringement that are alleged --

THE COURT: Let me hear from the other side as to how they trace this down and then, obviously, I will let you respond to whatever you hear.

OK. Who at the front table is going to address all of this?

MR. GABRIEL: Good afternoon, your Honor. May it please the Court, my name is Richard Gabriel. I am an attorney with the law firm of Holme Roberts & Owen in Denver, Colorado, and I am the lead counsel for the Recording Industry Association in these cases, the lead national counsel. I am admitted in the Southern District. I started my career here.

With me at counsel table is my co-counsel, J. Christopher Jensen, from the firm of Cowan, Liebowitz, and sitting on his left and to my right is a representative of the recording companies, Mr. Matthew Oppenheim.

Your Honor, let me first start by saying that every issue that these defendants are raising before you has been repeatedly raised in this court and has been rejected every single time in this court. I could hand you copies of the prior decisions. For example, Loud Records v. Does 1 - 74, they make the same arguments about quashing the subpoena, the same lawyers, because the complaint was subject to dismissal at this stage and because they say that our side did not make a concrete evidentiary showing. Judge Sweet denied that motion on October 12, 2005.

In Interscope Records Company, they made exactly the same motion they filed in Loud and Judge Holwell denied that motion on April 6, 2006.

In Atlantic Recording Corporation --

THE COURT: Let me accept that from you. I take it, this is in the briefs?

MR. GABRIEL: It is, your Honor, the first page.

THE COURT: What was the basis of Judge Sweet denying the motion? What does he say? You can trace from here to here to here to here and go for it? What?

MR. GABRIEL: No, his order was fairly short. I am happy to present it to you, if you like.

THE COURT: It is in the papers, isn't it?

MR. GABRIEL: It is, your Honor. It is attached to the papers.

Let me start with the factual basis; I think that is what the Court is asking for. Your Honor, we start by having our investigator go on these file sharing programs the same way you or I could do so. You go on there and the investigator is looking at files that people are sharing, and they will look for people who are sharing a lot of files, sometimes a thousand or 2,000 music files.

THE COURT: How does he do that? Just tell me briefly, if you can.

MR. GABRIEL: Well, the process is automated and proprietary. I am not privy to all of it. But effectively it automates what you or I could do. We could go onto Kazaa and basically search on people's shared files and look for files. And so all they do is search -- they want to find somebody who has this kind of music, they can get to somebody's shared file on their computer. Kazaa, when you load that program --

THE COURT: I'm sorry, you are going to have to assume that I am just as ignorant as that chair over there on all of this. You want to get -- you go on the Internet, right?

MR. GABRIEL: That's correct, your Honor.

THE COURT: And you want to share a file with somebody. Now, how do you know where to go to say, hey, guy, share with me? How do you know that?

MR. GABRIEL: The way these programs are set up, your Honor, everybody has a shared file, and I could do a search for -- I know you are an opera buff, I could search a operatic song. Does somebody have Mario Lanza on some song? And it will come back to me and say here are seven places I could get it, and I can click on that and download that music file.

From there, there are technological -- fairly easy ways you could say I like what this person has, what else do they have to share, and I can look at their entire shared folder which the Kazaa program creates whenever somebody installs that program.

What you have in it -- there is a sampling of them in the declaration of Jonathan Whitehead that we submitted to you. It gives examples of what these shared folders look like for at least the first three John Does.

So, your Honor, what happens is our investigator, a company called MediaSentry, will actually look at that shared folder and it does a couple of things. It will take a picture of that folder and that's what Exhibit 1 to the Whitehead declaration is, a thousand songs that might be in that folder. It will then -- and this is the part Mr. Beckerman keeps leaving out -- downloads the actual MP3 files. You asked, are there music there? Yes, there are sound recordings there. Our copyrighted sound recordings are there.

Exhibit A to the Complaint is a listing of -- we will take a sampling of 10 or 20 MP3 files, music files. We will then have our people check every one of them, listening to them physically, to make sure that they are our copyrighted songs.

So notwithstanding what Mr. Beckerman tells you, we have evidence that these were downloaded to this computer. And what this case is about here, we haven't started the case yet. We haven't subpoenaed anybody because we can't. We can't serve assignments on anybody. And these defendants are asking you now, although the case hasn't started, to grant them summary judgment and say we could never, ever find out who these John Does are.

And I skipped a step. Let me back up for a minute. So what we know, your Honor, is these people have downloaded these music files. What we also know is that they are distributing these music files. It's called "file sharing" for a reason. They are distributing to the world. Anybody, you or I could download from anybody else on that network. We argue that that is distribution. We specifically allege it two or three times in Paragraph 24 of the Complaint. We specifically alleged they violated our right of reproduction by downloading. We specifically allege that they violate our right of distribution by participating in this file sharing network.

And, your Honor, what we had submitted to you as evidence are the shared file that shows the songs. We have a declaration that shows the specific music files we have downloaded. We have those. And I submit to you, that's sufficient evidence to get us to the point to allow us to subpoena the ISP to find out the identity of the defendants.

THE COURT: And then take a deposition, or whatever?

MR. GABRIEL: Yes. And, again, Mr. Beckerman made several misstatements of fact in terms of what happens. He says this is a sham lawsuit. It's not. In this very district, your Honor, there have been several cases where we will substitute the actual defendant for the Doe when we figure out who it is. There are sometimes where we figure out we don't have personal jurisdiction or there is an issue and we will dismiss and sue someplace else, but we certainly have done that and do that. All we're seeking -- and then we would either substitute them for the John Doe and proceed as any other case, and they have the full opportunity to contest the merits of the case. They can challenge our evidence, do whatever they want, and they can do that.

Now, Mr. Beckerman, you know, touts this Zi Mei affidavit, their declaration. Mr. Mei, if you look at his declaration, he throws up trial balloons for why there could be a defense. We're not even there yet, your Honor. And I submit to you at this stage his affidavit is irrelevant, although I will point out that, you know, he's been on Web sites saying -- Mr. Mei himself -- I need your help to beat the RI Double A, the recording industry, and particularly on these issues. What he never says is these John Does at issue here today did not download music and did not share music. He never says that in his affidavit.

THE COURT: He never says what?

MR. GABRIEL: That they didn't do it. He throws up a bunch of defenses they may have that go to our proof. He is challenging whether we have sufficient proof, again arguing basically summary judgment, but it is very interesting that he never says these two John Does before you now didn't do this. I think that is telling. I will say to you that is irrelevant because we are not there.

THE COURT: I understand.

MR. GABRIEL: Another misstatement that Mr. Beckerman made, your Honor: He said that there is an admission from the record companies that these -- the people who participate in these programs, the file sharing programs, don't even know that they're sharing. Well, whether or not that's true, it's also irrelevant. As the Court well knows, on copyright law it's strict liability.

Innocent infringement is infringement, whether they know so or not, and so that point is irrelevant.

Your Honor, I'm not sure how -- those are I think the factual points --

THE COURT: Let me hear from the other side now.

MR. GABRIEL: If I may add one point? You asked for the facts, and so Mr. Beckerman can respond fully.

So then what happens, your Honor, when we download the music and we take a picture of the shared drive, we don't know an exact identity of the defendant. What we are able to tell, very easily, is if we can identify a series of numbers and dots called the Internet protocol address. That's a number that the Internet service provider assigns whenever somebody logs on and is using their service, that's how far the Internet service provider identifies its customer.

And so what we know is we have, we call it a capture. These people are caught downloading and distributing music on a certain date and time, which we allege, but we don't know who they are. We know this Internet protocol address.

Now, Mr. Beckerman is correct, what we used to do is serve prelitigation subpoenas under the Digital Millennium Copyright Act. Various courts said under statutory construction that those weren't proper, and one of the case is called Verizon. Interestingly, in that case, Verizon, who is the one challenging, conceded that the proper way to get the information was to file a John Doe Complaint and then subpoena us, because now you don't have a prelitigation subpoena anymore. That's precisely what we do. That's what brings us here today.

The principal purpose of this case is to allow us to identify who the infringers are so that we could pursue our legal rights and remedies. And, again, your Honor, we would ask that this Court reject this argument that we now have to prove our entire case and effectively ask you to grant summary judgment at this stage.

If they are right, we never get to identify who these significant infringers are or to pursue our rights and we are out of luck, and what they are basically asking this Court to do is to give them a free pass forever to infringe on our copyright rights. I submit to you that is not the law, it can't be the law. I would ask that you reject that.

There are legal issues that they raise I'm happy to address after Mr. Beckerman responds to what I just said now.

THE COURT: Very good. OK.

MR. BECKERMAN: In the first place, Mr. Gabriel misrepresented to the Court that the issues on this motion have been previously decided. There are three issues in this motion. The one with which we lead off has never been decided in this court. It is pending in two other cases in this court and has never -- and has not been reached by anyone yet. This is the argument that goes to the lack of evidence, the improper evidentiary showing and the analysis by Zi Mei of the lack of evidentiary showing by the plaintiffs.

This argument was made in Atlantic v. Does before Judge Swain and it was made in Motown v. Does before Judge Buchwald, and those motions have been fully briefed and are pending before those judges, and this issue has never been decided in any of the cases.

Now, the second issue as to the severance and dismissal as to the John Does, we don't actually know all the ex parte decisions or the decisions that are out there in these cases. The plaintiffs know. We only know the ones that we found and we have cited.

However, in this court, the one of which we are aware, is that in Atlantic v. Does 1 - 25, Judge Swain did resolve that issue against us, and she did so not saying that severance and dismissal was improper but that she thought it was premature until an answer was served. However, Judge Swain was apparently operating under the misconception that there ever was going to be an answer served. She thought this was a legitimate lawsuit that was going to stay pending in her court and she would see the litigation of the merits and then decide whether or not severance and dismissal was proper or not.

Now, in the first place, I would submit she was wrong, because permissive joinder is only discretionary if you meet the basic, fundamental requirements for permissive joinder, one of which is that the acts alleged arise -- the claim for relief in the complaint arises from the same acts or transactions or series of acts and transactions.

If you don't have that, if you have merely 149 parallel defendants who all did something similar but didn't know each other and who weren't working together, you don't have the opportunity to decide whether or not permissive joinder is or is not appropriate. There is discretion -- once all the requirements are met for permissive joined, then the Court has discretion. So I think she was wrong about that, but she was also operating under a misconception that she was ever going to have a chance reach that issue because what they will do is if they find out who the John Does are, they will discontinue the case. That is what they do invariably.

In fact, in Atlantic v. Does, any person knowledgeable on computers could analyze how many of those people are in the Southern District and it might be none.

Now, she also did resolve against us the issue we made with respect to the subpoena, which we mentioned here, that the insufficiency of the Complaint is also a grounds for vacating the subpoena. And she resolved that against us, and all I could say is I respectfully disagree. These motions were all made around the same time. This is all new. It was all done around the same time. It is the same boilerplate complaint. Your Honor's opinion is worth -- is entitled to at least as much respect as Judge Swain's opinion that of course your Honor should read Judge Swain's opinion. I think counsel will stipulate the complaint had the identical allegations, so I don't think that there is any factual issue about it. I just submit that Judge Swain was wrong. That is in Atlantic v. Does.

In Loud v. Does, decided by Judge Sweet, there was no severance of dismissal argument, there was no ex parte discovery argument. The only thing that was at issue there was whether the subpoenas should be vacated because of the insufficiency of the Complaint. Likewise in Interscope v. Does. And I will admit that both of those motions were resolved against us, but I will also say that there is no way your Honor could ascertain from either order what the judge's rationale was. Judge Sweet just said that he didn't see any reason under Rule 45 to vacate the subpoena, and he said something about that they identify the date and time that the screen shot was made. I don't know what that meant.

Judge Holwell said that he was denying the motion for the reasons discussed at the conference. I was present at the conference and it is not at all clear to me what he meant by that statement.

Now, going to the facts, I'm not -- my hearing isn't great but I thought I heard Mr. Gabriel, in response to your Honor's question about how they know this, say to your Honor that it's based on something that's proprietary. Well, you know, the plaintiffs are entitled to have anything proprietary they want. But when they come into a court of law to try to wreck people's lives, they have an obligation to not give cute answers about what they have that is proprietary. They have an obligation to take whatever --

THE COURT: Please, please, please. You know, this kind of argument, "they come into court to wreck people's lives," I don't see where that possibly comes from. And for you to make that statement almost makes me want to not believe a thing you are telling me, and I'll be very blunt about it.

What are you talking about, wrecking people's lives, and be specific?

MR. BECKERMAN: OK. You take a middle class or poor person and they find out that there is a lawsuit 3,000 miles away. They don't know what is in the summons and complaint. They don't know what the judge's rules are. They don't know any lawyers in that town. They don't know what the basis for the ex parte discovery order was. All they know is that their Internet service provider is about to give their name -- their private information, their confidential information which Congress has sought to protect, they're about to give out that information unless they can get a lawyer in New York to bring a motion to quash the subpoena and vacate the discovery order in three days -- five days. That's the kind of the notice they received.

THE COURT: You say that's wrecking their lives?

MR. BECKERMAN: How would you feel, your Honor, if your Honor knew that you were being sued 3,000 miles away --

THE COURT: Let me stop you in the other direction. Mariah Carey dreams up a program. She gets a song. Does she write them or does somebody else write them? I don't know who writes them. Who does? Do you know at the front table? Is she the composer?

MR. GABRIEL: She writes some. She has other people write some.

THE COURT: She writes some songs. They hire an orchestra. They get a recording of it. They go to a recording company. They put it out on the market. They get a copyright from the United States Copyright Office and they put it on the air, and she is entitled and so is the record company entitled to get paid for that.

And you're telling me that somebody's lives are going to be wrecked if they take this without paying for it --

MR. BECKERMAN: No, your Honor.

THE COURT: That's what you're telling me.

MR. BECKERMAN: No. If someone takes it without paying for it, then they're guilty of a copyright infringement.

THE COURT: How does that wreck --

MR. BECKERMAN: It is OK for them to be subpoenaed --

THE COURT: All the plaintiff wants with this motion here today is he wants to know who these people are, and specifically your two, which is what, 37 and whatever? He just wants to know what their names are. How is that wrecking their lives?

MR. BECKERMAN: So he can sue them.

THE COURT: OK. And then they have taken the work of Mariah Carey without paying for it.

MR. BECKERMAN: Your Honor is assuming that.


MR. BECKERMAN: Your Honor is assuming that.

THE COURT: No, they say that in here. They say there is copyright infringement.

MR. BECKERMAN: Where do they say it? Where do they specify? Let them give you one example of my client stealing any song from anybody.

THE COURT: That is what they are trying find out, who that your client is.

MR. BECKERMAN: They are trying to find out if they have a case, and the way they find out if they have a case is once they have a name and address, they will bring that law suit. I have a case, your Honor, in Brooklyn where the defendant is a home healthcare worker who has never even turned on a computer in her life and the plaintiffs know that she didn't infringe any copyright. They won't --

THE COURT: Did she let her teenage son use it and then he did it? Who knows?

MR. BECKERMAN: Maybe, but she didn't. They know that she is not a proper defendant.

THE COURT: How do you know? Until they get --

MR. BECKERMAN: They know that she doesn't use the computer.

THE COURT: How do you know they know that she is not a proper defendant? If it is downloaded to her computer, she has got I assume a defense and say, gee, my kid did this --

MR. BECKERMAN: And how many thousands of dollars does it cost to litigate a federal case?

THE COURT: OK. What right does Mariah Carey have to say, OK, I'll let you take it and I'm not going to follow up on this? I'll let you --

MR. BECKERMAN: This is not Mariah Carey. This is not about the song writer's royalties --

THE COURT: It is about paying for a copyright.

MR. BECKERMAN: They have a right to sue when they have a meritorious claim against somebody and not until then.

THE COURT: They've got to find out, for starters, who the person is that you should go after, and at this point all they got is a button.

MR. BECKERMAN: First they should conduct a proper investigation to seek to find instances of actual infringement.

THE COURT: Well, they did. They apparently went to -- have you looked at Exhibit A for --

MR. BECKERMAN: Your Honor has prejudged this?

THE COURT: No, I'm looking at document what, 61 is the other one? They are saying these one, two, three, four, five, six, seven, eight, these nine songs were taken by somebody who is John Doe 61.

MR. BECKERMAN: No, no, no, your Honor.

THE COURT: Yes, they are.

MR. BECKERMAN: They are saying that they themselves downloaded it. Their investigator downloaded it. Nobody else.

THE COURT: They are saying that was downloaded by John Doe 61.

MR. BECKERMAN: No, they do not say that.

THE COURT: Yes, they do. Of course they do.


THE COURT: Of course they do.

MR. BECKERMAN: They wouldn't have any basis --

THE COURT: As a result of each defendant's --

MR. BECKERMAN: Mr. Gabriel, have you alleged specific instances of specific songs that were downloaded by a John Doe? Will your Honor ask Mr. Gabriel whether --


MR. BECKERMAN: Your Honor, if Mr. Gabriel has that, I'm surprised that it has never been alleged before. I'm surprised that we've flipped through these papers 100 times and we've never seen it.

THE COURT: Whether you call it downloading or uploading or anything else, paragraph 26 says these are acts of infringement.

MR. BECKERMAN: Yes, it says that these are acts of infringement but --

THE COURT: OK. That means you took the song without having a right to take it.

MR. BECKERMAN: No, they did not allege that, your Honor.

THE COURT: That's what they said.

MR. BECKERMAN: No, they did not. They said that they themselves have downloaded the Exhibit A songs. Their own investigator downloaded it. And the case law is legion that when plaintiff's own --

THE COURT: Paragraph 27.

MR. BECKERMAN: Excuse me?

THE COURT: Paragraph 27: "As a result of each defendant's infringement of plaintiffs' copyrights and exclusive rights under copyright," that means that the defendant did something that infringed a copyright, which means they took the music without paying for it.

MR. BECKERMAN: It is a conclusory allegation of copyright infringement.

THE COURT: Of course it is. This is a pleading.

MR. BECKERMAN: But they have not alleged any instances of any copying.

THE COURT: This is a pleading. They say they have infringed. They took it.

MR. BECKERMAN: Yes. The case law is that notice pleading for a copyright case requires at least identifying some specific acts of infringement.

THE COURT: Look, we in a situation where this kind of thing at least has to go to finding out who took what, and if we discover -- and they apparently have, as I say, seven or eight or nine. Here is Doe 37. One, two, three, four, five, six, seven, eight songs, and if they know who Doe 37 is, they can say, Doe 37, did you take these, did you download these, and if he says no, that may be the end of it. Who knows?

MR. BECKERMAN: They did not say that he downloaded those. They themselves downloaded it.

THE COURT: They did.

MR. BECKERMAN: No, they did not.

THE COURT: Counsel, didn't you say that? You are sitting on your hands here and the Court is doing all the talking. Come on.

MR. GABRIEL: Your Honor, I have been chomping at the bit to stand up but I would not presuppose.

Your Honor, paragraph 24, which is the first paragraph of the Complaint that you pointed out, makes the direct allegations, and let me back up. It refers to a defined term, quote, copyrighted recordings.

Copyrighted recordings are identified as the recordings in Exhibit A, the eight or nine that you pointed out.

Paragraph 24 starts by saying: "Plaintiffs are informed and believe that each defendant, without the permission or consent of plaintiffs, has used and continues to use an online media distribution system to download, distribute to the public and/or make available for distribution to others certain of the," defined term, "Copyrighted Recordings." It says Exhibit A identifies what those are. It says again several sentences later that, "without permission, they downloaded, distributed and made available."

Your Honor, we specifically alleged -- and let me back up. What the law requires is not pleading --

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 have somebody go where?

MR. GABRIEL: Right into Kazaa, one of these programs like you or I could.


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?


THE COURT: And you see that they've got Mariah Carey in there?


THE COURT: OK. And there is no authorization for that?


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.

Do we need to submit a formal order?

MR. GABRIEL: Yes, your Honor.

THE COURT: The minutes are an order, I observe to you, immediately, but you may want to give me a formal written order to show to somebody hereafter to justify this.

MR. GABRIEL: I'm reminded, your Honor, we would need a written order to serve on an Internet service provider.

THE COURT: That is what I am saying. If you want to submit a formal order, you submit a formal order.

This motion is denied.

- - -

source (http://www.ilrweb.com/viewILRPDFfull.asp?filename=warner_does1-149_060519transcript)