Monday, April 27, 2009

Beckerman likens subpoena procedure to 'Nazi Germany'

When the record labels want to sue an individual peer-to-peer infringer, they face a problem: they have an IP address, but not a name -- and they can't sue an IP address. How to get that name, which only the ISP knows? The original plan was for the labels to avail themselves of the DMCA's special, expedited subpoena process found in 17 U.S.C § 512(h). That plan, however, was thwarted by the D.C. Circuit, which held in RIAA v. Verizon that a Section 512(h) subpoena is not available in the p2p context, where the allegedly infringing material resides on the user's computer -- not the ISP's.

So on to Plan B. What the labels decided to do instead was file lawsuits against "Does" -- placeholder defendants whose true names they don't yet know. They then ask the court to issue subpoenas to ISPs, requesting that the ISP turn over information (including the names) of the subscribers associated with particular IP addresses. Once the ISP reveals the names, the labels substitute in "Joel Tenenbaum" or "Jammie Thomas" for "Doe." The process is cumbersome, but it's the labels' best option for finding defendants after RIAA v. Verizon, and it's permitted by the rules.

Ray Beckerman, proprietor of the Recording Industry vs. The People blog, and a vocal RIAA critic, does not like this process. In this recent podcast on This Week in Law, Beckerman argues that it affords the Doe defendants insufficient opportunity to move to quash the subpoenas that seek their identity. And just how horrific is this subpoena procedure that federal courts all over the country have approved? Proclaims Beckerman:
Welcome to Nazi Germany, not the United States of America.
It's been a while since I've seen Schindler's List, but I do recall Nazi crimes a bit more serious than allegedly depriving anonymous accused copyright infringers of the chance to keep their identities hidden.

Hilariously, This Week in Law host Denise Howell, complimenting Beckerman toward the end of the show on his Twittering etiquette, calls Beckerman "one of the most polite and diligent online denizens I've ever met." Howell must hang out with a pretty rough crowd...


  1. So Ray would deprive the legal world of a tool that has been essential to, among other things, successfully trying civil rights abuse cases merely because the music industry avails itself of the procedure? And he's calling everyone else Nazis? Pot meet kettle...

  2. Is it not typical practice in a Doe case to amend the pleading with the name when the identity is revealed, not to drop the original proceeding and begin a second proceeding?

    One of the things that lawyers have a hard time grasping in the way non-lawyers look at these cases, is that innocence is not a particularly strong defense here in the sense that proving innocence is more expensive than paying the tribute.

    I worked for a rich fellow for a while who got a ticket for talking on his cell phone while driving. His cell phone was in the hands free holder at the time but the cop was sure of what he had seen. Cell phone records were available but it was cheaper for this man to pay the ticket then spend the time.

    Not that reading RecVThePeople doesn't often come over the top, but I don't think this is a balanced response.

  3. Dear Mister Sheffner, maybe it would be more honest to put his Nazi comparison in context of what he was talking about at that time!
    If I remember correctly from my listening to the recording, he was talking about the illegal acts of the labels' lawyers for example with those multiple does in one docket (up to more then one hundred at some times!).

    In texas there were explicit orders that they were forbidden in the future to do that, yet the labels' lawyers continued with this practice anyway!

    And it was right after that Mr. Beckerman explained those law violating tactics of the label lawyers that he was grasping for a comparison to this unprecedented violation of your law rules in this mass litigation campaign.
    You can "hear" in his mind that he is searching for a comparison since he needed a few seconds to come up with one.

    That his comparison to Nazi Germany was tasteless there should be no doubt.

    But guess what Ben, it was also simply plain wrong!

    The comparison was wrong, because what the Nazi's did was formaly legal!
    Law's enacted by the Nazis allowed them to do what they did!

    From that pure judicial standpoint, are the Label lawyers even worse then Nazi's since the label lawyers are doing stuff that the currently enacted US law does not allow them to do as far as I understand it!

  4. To Anonymous 11:52:

    The context of Beckerman's "Nazi Germany" statement was crystal clear, and it was exactly what I said in my post: it was his summary of the subpoena process employed by the record labels to identify defendants by their real names. Courts all over the country have approved this process; Beckerman himself says: "In the United States the courts have been routinely granting these "ex parte" orders, it appears." See To say that all these courts are akin to those in "Nazi Germany" is absurd and offensive.

  5. Well c'MON, Ben, Recording Industry vs The People as a reporter is often offensive in its constant spin in the first place.....

  6. Ben said
    "Courts all over the country have approved this process"

    But it is against FRCP, to lump unrelated Jon Doe's together and get rid of them in bulk is it not?

    The judges in texas said so, and what they said and how they explained it sounded resonable to me.

  7. Well this time the audiofile was loud enough ;-)
    But the pauses that the person in question made while explaining the allegedly illegal procedure used by the Record label lawyers made it strange sounding to hear.
    Here's a version where I deleted those silent speaking pauses a bit to shrink the part in question to 2:21 minutes overall. No removal or other editing of substantial content.

  8. If they sued me for downloading Wagner, *that* would be like Nazi Germany.

  9. To Anonymous 4:02:

    To call the labels' joinder tactics "illegal" is silly; courts have taken varying approaches on the Rule 20 issue. (Just as it would be silly to refer to to Joel Tenenbaum's botched efforts to depose Matt Oppenheim as "illegal," even though they were clearly not permitted by the rules.) And to bring in references to "Nazi Germany" when discussing discovery procedures is just beyond the pale.

  10. Permissive joinder is a pretty liberal process under the rules, bolstered by a policy of expediting the trial process by preventing multiple related actions. Here, a potential Doe is protected by due process at least two times. First, Rule 20 joinder operates on the pleadings alone, and nothing guarantees that the multiple parties or claims will be tried together or in federal court at all. Second, it requires a subpoena to get the user info from the ISP, which affords the opportunity to quash.

    From a policy perspective, allowing such a Doe joinder makes sense. The plaintiffs usually group Does by ISP, and beyond that, there's no way of knowing if each Doe is a separate user or if they are all dynamic IPs of the same account. Either way, without the Doe subpoena process, the plaintiffs would have no meaningful way of enforcing their rights against anonymous infringements online. Having to choose between inconveniencing alleged defendants with subpoenas and multiple chances to exit the litigation on the one hand, and effectively closing the doors to the courthouse for the copyright holder on the other, I'd take the process that favors the former.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.