RIAA Protests Oregon AG Discovery Request

NewYorkCountryLawyer writes "The RIAA is apparently having an allergic reaction to the request by the State Attorney General of Oregon for information about the RIAA's investigative tactics. The request came in Arista v. Does 1-17, the Portland, Oregon, case targeting students at the University of Oregon. Not only are the record companies opposing the request (pdf), they're asking the Judge not to even read it. (pdf)"

Re:Damn Lawyers.

[Opportunist]

No, at least not with smart lawyers. Judges tend to get annoyed with it and shoot your objections down by default after a while, even when they're legit.

Re:So not a lawyer...

[The Empiricist]

Striking something is not quite the same as not even reading it. What Arista records seems to be saying is that the University of Oregon added new arguments in a reply memorandum and that these new arguments should not be considered by the court.

When a party in a case wants the court to do something, that party often provides a memorandum in support of the requested action. This support brief provides the arguments as to why the court should take action. The opposing party then has an opportunity to counter these arguments by providing arguments as to why the court should not take action. This is the response brief. At this point, the party that asked the court to do something can counter the arguments made by the opposing party. This is the reply brief. Then the court makes a decision.

The party that asked the court to do something generally cannot add new arguments into the reply memorandum. That party may reaffirm its original arguments or try to shoot holes in the opposing party's arguments, but new arguments are generally not allowed. The reason for this is that the opposing party no longer has an opportunity to respond to arguments before the court makes a decision.

If the party that asked the court to do something were allowed to make new arguments, then it would make sense to withhold the best arguments until the reply brief is filed. This would tilt the outcome to the party making the request, which would lead to parties making a lot of requests (it is bad enough now, but it could be a lot worse).

The reality is that procedural matters are an important part of our legal system. A judge could be required to retry a case if an argument was improperly considered or improperly dismissed. Some scrutiny has to be applied, especially when the issue of whether to consider an argument is raised.

The judge would probably read the University of Oregon's reply carefully to determine whether new arguments were raised or not. If new arguments were raised, then the judge might very well strike the new arguments or even the entire reply, thus basing the decision on just the support and response briefs. If the arguments in the reply are not new (or simply shoot holes in Arista's response), then the judge would not strike the reply and make a decision based on all three briefs.

Of course, some research into the specific procedures of the District Court for the District of Oregon is necessary to fully understand the situation, but that seems to be the gist of what is going on.

Re:Right...

[Palpitations]

Note to mods: When I lived in Portland, I knew a real bearded woman. I'm pretty sure this should be insightful, not funny...

You meet some interesting people when you know some of Ken Kesey's old friends.

Re:Sur-replies?

[rmgrotkierii]

O. M. G.

This was a joke and I was referencing the show "Angel" with WR&H. In the show the law firm has access thousands of supposed ancient texts and other books from the various universes/realities. ARGH. So in essence they could have access to more than one version of the "Federal Rules of Civil Procedure," alas the joke was lost on you. I am truly sorry for that. :^(

Re:Read it, read it all

[eddeye]

The description in the summary about asking the judge not to read it is grossly misleading. The linked filing is nothing but a run-of-the-mill procedural issue.

What normally happens in court is a petitioner files a Motion, the respondent files a Response, and finally the petitioner files a Reply. Then the judge decides the issue. These are the procedural rules of litigation. The petitioner isn't allowed to make new arguments in the Reply. All their arguments must be made in the initial Motion so that the respondent has a chance to address them in the Response. The Reply gives the petitioner a final chance to address the respondent's Response arguments.

Here's what happened: University filed a motion to quash. RIAA filed their Reply. University filed a Response, which (according to the RIAA) contains new arguments. The second linked filing by the RIAA says hey that's unfair. Either ignore the new arguments that we didn't get to address, or give us a chance to address them (the Surreply in the first link). It's a perfectly legitimate request. If the University included new arguments, they broke the rules here. Either way, it's no big deal. The judge will most likely just consider the RIAA's Surreply in deciding the motion to quash. No harm, no foul. It happens all the time in civil litigation.

Re:Right...

[digitig]

Did you actually read the RAs? Oh, of course not, this is /.

Had you read them, you would have seen that the issue is that the University has raised new issues at a point in the process where new issues are not permitted, because it wouldn't give the RIAA proper opportunity to reply to them. What the RIAA is asking is that either the new issues are struck down without consideration or they be given the right of reply.

The RIAA seems to do some pretty dreadful things, but this one looks perfectly reasonable to me.

Re:Sur-replies?

[henni16]

the RIAA lawyers do have a parallel universe law library

Basically contradicting themselves within one page seems to be a part of it, too.
Or, maybe, nly they are allowed to reference other cases.
Page 3:

Two, the University's attempted challenge to Plaintiffs' discovery and litigation
practices is irrelevant to any issues presently before this Court. The evidence submitted
regarding what may have happened in different cases involving different parties, different facts,
different allegations, and different circumstances has no bearing on this case.

Next paragraph:

Over one hundred
different universities around the country have responded to identical subpoenas without raising
objections based on burden.
Similarly, the University's argument that the information requested by the subpoena is
not "directory information" and that FERPA somehow provides a basis for quashing the
subpoena also fails. Those courts that have addressed this precise issue have rejected the
University's argument and held instead that FERPA expressly allows the disclosure of the
information sought by the subpoena.

RIAA Counters its own arguments

[Fnord666]

Next, the University attempts to call into question Plaintiffs' pre-litigation discovery efforts to discover copyright infringement over peer-to-peer ("P2P") networks in an effort to convince theCourt to reconsider its grant of Plaintiffs' discovery motion. The Court should reject the University's attempts for two reasons. One, the University has no evidence whatsoever that Plaintiffs acted at all improperly during the course of this litigation. The University's arguments concerning Plaintiffs' discovery and litigation practices are based entirely on allegations and deposition testimony from different cases and amount to nothing more than pure conjecture. Two, the University's attempted challenge to Plaintiffs' discovery and litigation practices is irrelevant to any issues presently before this Court. The evidence submitted regarding what mayhave happened in different cases involving different parties, different facts, different allegations, and different circumstances has no bearing on this case.

Likewise, the University's continued insistence that the subpoena is unduly burdensome and overly broad, despite the fact that Plaintiffs have clarified the scope of information they are seeking, is unavailing. Plaintiffs are seeking only information sufficient to identify the individual(s) associated with the IP addresses listed in the subpoena, information that the University admits it already has. The University's argument that this information is overbroad and that producing this information would be unduly burdensome is specious. Over one hundred different universities around the country have responded to identical subpoenas without raising objections based on burden.

I love how the RIAA argues that what has happened and evidence that has been introduced in other cases similar to this one has no bearing because they are different cases with what may be different circumstances, then turns right around in the next paragraph and cites what has happened in other cases where universities have caved ^b^b^b^b^b responded to their requests without objection as a basis for their arguments.

Re:Damn Lawyers.

[NewYorkCountryLawyer]

It's the 'motion to strike'. The motion to strike the reply memo means 'please do not read it in connection with the motion'.

Re:the AG's point

[NewYorkCountryLawyer]

No one here (except Ray of course) seems to be getting the Oregon AG's point. The plaintiffs were allowed to issue a subpoena to the University that said essentially "for each of these IP addresses we want you to identify the infringer ". That is, the University must decide who is responsible for the alleged deeds, not just provide a linkage between IP address and a user. They reply essentially "we can't prove the plaintiffs case for them, so the subpoena should be quashed". Now the plaintiffs -- the arrogant bastards that they are -- can't admit they are wrong. They could simply reissue the subpoena to say essentially "what user (provide a name) was assigned this IP address at this time and date". But instead, they throw irrelevant tantrums about procedure. I expect the judge will simply narrow the scope of the subpoena, but I hope he plays along and lets the AG have her discovery. Regards, Art

The way I see it, Art:

1. The RIAA just wants the name and address of the person to whom the internet access account is addressed, who is "John Doe".

2. The RIAA assumes, without benefit of any evidence for the assumption, that that person committed a copyright infringement, and alleges that, and will sue that person once it gets his or her name and address.

3. The Attorney General correctly recognized that, contrary to the RIAA's careless pleading and careless affidavits, the RIAA's evidence does NOT show that that person committed a copyright infringement.

4. The Attorney General correctly recognizes that the university has a duty to protect the privacy of its students, except where the RIAA could produce evidence that the student committed a copyright infringement.

5. Since the RIAA doesn't have any such evidence (and indeed has admitted that its "investigation" does not reveal what individual committed the alleged infringement), the only way the school could determine whether the John Doe in question committed a copyright infringement is to conduct a detailed investigation, including interviews and forensic examinations, which it has no legal duty to do (and which might be in breach of its duties to the students).

6. If the RIAA rephrased the subpoena to call for the names and addresses of the persons to whom the internet access account was assigned, without any reference to their being infringers, the objection would be the same: the RIAA has no legal basis for getting that person's identity, since it has no evidence that person committed any copyright infringement.

The fact that people haven't been discussing these issues doesn't mean they're not "getting the Oregon AG's point", because this particular article wasn't so much about the AG's objection to the RIAA's subpoena, as it was about the AG's taking the affirmative, and deciding to seek some "discovery" of its own into how the RIAA comes to be bringing this shakedown in the first place.