UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ------------------------------------------------------------x Appeal No. 05-5559 LOUD RECORDS, LLC, et al., Plaintiffs-Appellees, -againstDOES 1-74, Defendant-Appellant REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR STAY PENDING APPEAL On Appeal From the United States District Court for the Southern District of New York Civil Action No. 04CV-9881-RWS
------------------------------------------------------------x I. Plaintiffs make no legally cognizable showing for denying the stay.
For all its verbosity, plaintiffs' response to the motion fails to refute the obvious: that the denial of the requested stay would mean that Jane Doe has lost her appeal before the appeal was even heard. In more civilized times, parties in plaintiffs' position would have been counseled by their attorneys to consent to a stay pending appeal of such a motion so long as the appeal were agreed to be perfected on an expeditious schedule. Instead, plaintiff wastes the Court's and counsel's time with 20 pages of 'opposition' material consisting chiefly of a bankrupt attempt to prematurely argue the merits of the appeal. The Court will see that the plaintiffs 'protest too much', and that their argument on the merits, relying as it does upon a default judgment and an unexplained Texas district court ruling against a pro se litigant, without disclosing to the Court the obvious limitations inhering in such 'precedents', is deceptive and lacking in intellectual integrity. (See Point 3, below.).
II. Plaintiffs have made no motion to dismiss the appeal but argue, frivolously, that this Court is without jurisdiction. An order denying a motion to quash is – as to a person having an interest in the subpoenaed information who is not the recipient of the subpoena – an appealable order. See, e.g. Impounded, 277 F.3d 407, 410, 51 Fed.R.Serv.3d 962 (3rd Cir. 2002) “When a party, other than the one to whom a subpoena has been addressed, moves to quash the subpoena, the denial of his motion disposes of his claims fully and finally, it being unreasonable to expect that a third party will risk contempt in order to facilitate immediate review. Accordingly, the order currently before us is final for the purposes of appellate review.” (Emphasis added); In re Matter of Grand Jury, 619 F.2d 1022, 1025 (3rd Cir. 1980); In re Grand Jury Proceedings Subpoena, 841 F.2d 230, 232-233, 25 Fed. R. Evid. Serv. 101 (8th Cir.1988). The reasoning of the cases is unassailable. In the instant case, it is unlikely in the extreme that CSC Holdings (“Cablevision”) would risk being in contempt in order to help Ms. Doe. (Indeed, it would not be surprising for CSC to be a subsidiary or other affiliate of one of the plaintiffs.) Plaintiffs decry the fact that under our hurried time schedule applying for an emergency stay we neglected to cite any Second Circuit cases. To this we can only say: (1) plaintiffs themselves do not cite any Second Circuit cases disagreeing with the Court's brethren in the 3rd and 8th Circuits; (2) most decisions of this Court regarding appealability are unpublished decisions of motions; (3) plaintiffs do not cite a single principled reason of policy as to why the 3rd and 8th Circuit cases should not be followed; and (4) plaintiffs do not distinguish those cases on any basis other than that they involved – as do almost all published decisions relating solely to subpoenas – grand juries.
Actually, the instant proceedings do bear analogy to grand juries, in that they have proceeded and are proceeding – with the exception of Ms. Doe's motion to quash subpoena – entirely ex parte. None of the defendants have been served with a summons and complaint, or given notice of any court proceedings whatsoever, other than the letter from their ISP that there is a subpoena returnable in Manhattan on a certain date. Most of the defendants no doubt live nowhere in the vicinity of Manhattan, or even New York State. This is the first and only time Ms. Doe will have anything to do with this case, as it is plaintiffs' admitted intention – once they have extracted her name and address – to discontinue this so called “action” as to Ms. Doe and then sue her in a separate proceeding. Certainly these ex parte proceedings are more analogous to a grand jury proceeding than they are to Chase Manhattan Bank v. Turner & Newall, PLC, 964 F.2d 159 (2 Cir. 1992), upon which plaintiffs rely, a contested, disputed, litigated commercial case in which a party sought to appeal from an interlocutory discovery order. III. Plaintiffs' discussion of the merits of the appeal is both frivolous and deceptive. The underlying complaint consists of a long list of songs in shared file folders which were associated with an IP address, a short list of songs which plaintiffs themselves downloaded, and a conclusory allegation that “Plaintiffs are informed and believe that each Defendant has, without the permission or consent of Plaintiffs, downloaded, distributed to the public, and/or made available for distribution to others additional sound recordings”. Plaintiffs have no other evidence or allegations, and the record is of course entirely silent, as to -what the basis was for plaintiff's information and belief, -3-
-how the defendants allegedly acquired the songs, -what the defendants allegedly did with the songs, -whether it was in fact the defendants who did anything -whether any of the songs in the folders were unauthorized copies, -the acts, dates, and times of any copyright infringements, or -anything else a Court would want to know in determining the sufficiency of a complaint in a copyright infringement action. I.e., it is an entirely sham complaint, meant solely as a device to obtain ex parte preaction discovery without affording anyone fair notice and an opportunity to be heard. A subpoena seeking the identity of an unknown defendant must be quashed where the underlying complaint is legally insufficient and subject to dismissal. Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573, 579 (N.D.Cal.1999); Sony Music Entertainment Inc. v. Does 140, 326 F.Supp.2d 556, 564-65 (S.D.N.Y. 2004); Dendrite International, Inc. v. Doe No. 3, 342 N.J.Super. 134, 141, 775 A.2d 756, 760 (N.J. App. 2001) (refusing to enforce subpoena where underlying complaint was subject to dismissal for failure to state a claim upon which relief can be granted); Highfields Capital Management L.P. v. Doe, 385 F.Supp.2d 969 (N.D. Cal. Jan. 18, 2005)(granting John Doe defendant’s Rule 45(c)(3)(a) motion to a quash a subpoena seeking his identity). The reason for the rule is well expressed by the Columbia Insurance court: plaintiff should establish to the Court's satisfaction that plaintiff's suit against defendant could withstand a motion to dismiss. See Gillespie, 629 F.2d at 642. A conclusory pleading will never be sufficient to satisfy this element. Pre-service discovery is akin to the process used during criminal investigations to obtain warrants. The requirement that the government show probable cause is, in part, a protection against the misuse of ex parte procedures to invade the privacy of one who has done no wrong. A similar requirement is necessary here to -4-
prevent abuse of this extraordinary application of the discovery process and to ensure that plaintiff has standing to pursue an action against defendant. See e.g., Plant, 19 F.Supp.2d at 1321 n. 2 (commenting that standing was likely absent because defendants were alleging only future acts of infringement, not past acts or patterns of infringement). Thus, plaintiff must make some showing that an act giving rise to civil liability actually occurred and that the discovery is aimed at revealing specific identifying features of the person or entity who committed that act. 185 F.R.D. at 579-580. All the plaintiffs have alleged or know is that a certain file sharing folder was associated with an IP address. On that basis they have temerity to accuse the unknown person associated with that IP address of having infringed someone's copyrights. Defendant’s argument that its Complaint can withstand a motion to dismiss is laughable.1 In copyright infringement cases, the complaint “must set out the ‘particular infringing acts ... with some specificity.” Marvullo v. Gruner & Jahr, 105 F.Supp.2d 225, 230 (S.D.N.Y. 2000) (italics added). DiMaggio v. International Sports Ltd., 97 Civ. 7767, 1998 WL 549690 at *2 (S.D.N.Y. Aug. 31, 1998); Stampone v. Stahl, 05 Civ. 1921, 2005 WL 1694073 at *2 (D.N.J. July 19, 2005) (dismissing copyright claim pursuant to Rule 12(b)(6) where complaint failed “to set out particular infringing acts with some specificity”) (italics added). Appellees’ unsupported assertion that it “has set forth the acts of infringement with far more specificity than required” (Appellees’ Resp. p. 12) is frivolous; no acts of infringement are alleged at all.
Appellee’s remark that “[n]otably, [a]ppellant never moved to dismiss the complaint” Appellee’s Response p. 8, is absurd. Appellee has never served Ms. Doe. -5-
In cases where particularization in pleading is required, as here, factual allegations which are pleaded on information and belief must indicate the source of such information and the reason for such belief. Trans World Corp. v. Odyssey Partners, 561 F.Supp. 1315, 1323 (S.D.N.Y. 1983). Generally, pleading on "information and belief" is appropriate. That general rule, however, is modified where more specific pleading requirements are imposed. In that situation, pleading upon information and belief is permissible so long as the allegations are accompanied by a statement of facts upon which the belief is founded. Fountain v. Talley, 104 F.Supp.2d 1345, 1355 (M.D.Ala. 2000) (emphasis added) (granting motion to dismiss because critical element of claim was pleaded upon information and belief without alleging facts showing the basis for such belief). Neither in the complaint, nor anywhere else in the record, were any of the specific facts upon which plaintiffs’ purported “information and belief” are supposedly based set forth. By this silence, appellees acknowledge that their omission of specific acts of copyright infringement was not merely procedural but substantive. In fact, they have no knowledge of any infringement. The Complaint does not allege any specific acts of “distribution” of music files “to the public.”
Appellees now attempt to augment the record by making comments here in their
Appellees allege only that they logged into the P2P network and viewed certain music files that were allegedly being offered to other users. Appellees’ Response, p. 5. The only downloading alleged is their own, which, under well settled principles, simply does not count as a copyright infringement. See, e.g. U.S. Naval Institute v. Charter Communications, Inc., 936 F.2d 692, 695 (2d Cir. 1991) (“It is elementary that the lawful owner of a copyright is incapable of infringing a copyright interest that is owned by him”); RSO Records v. Peri, 79 Civ. 5098, 1980 WL 1164 at *3 (S.D.N.Y. Sep. 5, 1980) (complaint alleging that plaintiffs participated in reproduction and distribution of infringing copies failed to state valid infringement claim against defendants; “a copyright owner cannot infringe his own copyright”); Higgins v. Detroit Education Television Foundation, 4 F.Supp.2d 701, 705 (E.D.Mich. 1998) (“[a] plaintiff may not claim to have been damaged by reason of a defendant’s sale of alleged infringing copies if the copies were sold to plaintiff’s agent”). -6-
attorney's hearsay, unsworn, “response” that plaintiffs logged into the P2P network and viewed certain music files that defendant was offering to other users. Appellee’s Resp., p. 5. Appellees, however, do not and cannot claim that they observed any of these files actually being downloaded or uploaded, or that they have any evidence that the files they viewed were unauthorized copies, or that they can prove Ms. Doe did anything at all, or even knew about the folder. Apart from the fact that counsel's allegations do not appear in the record, even if they had appeared they would have failed to make out a prima facie case for copyright infringement. It is well settled that merely making something available does not satisfy the requirement of copyright infringement. See e.g., In re Napster, Inc., 377 F.Supp.2d 796, 802, 805 (N.D.Cal. May 31, 2005) (making copyrighted works available for downloading by others does not, by itself, violate the copyright owner’s right of distribution since infringement requires actual dissemination of copies). Arista Records, Inc. v. MP3Board, Inc., 00 Civ. 4660, 2002 WL 1997918 at *4 (S.D.N.Y. Aug. 29, 2002) (posting on MP3Board website of links leading to infringing audio files does not establish unlawful dissemination of copies of such files to the public); Obolensky v. G.P. Putnam’s Sons, 628 F.Supp. 1552, 1555-56 (S.D.N.Y.) (publisher did not infringe on copyright owner’s right of distribution of copyrighted book by listing the book in a trade publication as belonging to publisher where publisher neither copied the book nor sold any copies of the book; “there is no violation of the right to vend copyrighted works ... where the defendant offers to sell copyrighted materials but does not consummate a sale”), aff’d, 795 F.2d 1005 (2d Cir. 1986); SBK Catalogue Partnership v. Orion Pictures Corp., 723 F.Supp. 1053, 1064 (D.N.J. 1989) (merely “authorizing” a third party to distribute copyrighted works without proof that the third party actually did so does not constitute copyright infringement); CACI Intern., Inc. v. Pentagen Technologies
Intern., 93 Civ. 1631, 1994 WL 1752376 at *4 (E.D.Va. Jun. 16, 1994) (marketing of software package without actually distributing it does not constitute copyright infringement). As plaintiffs' well know, their reliance on Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997), as contrary authority, is totally misplaced and disingenuous, since Hotaling involved the dissemination of admittedly unauthorized copies, while in the instant case plaintiffs have NO evidence that the files in the instant case are unauthorized.3 Appellees’ reliance on Carell v. Shubert Organization, Inc., 104 F.Supp.2d 236 (S.D.N.Y. 2000) is likewise misplaced. In Carell the complaint satisfied the pleading requirement by identifying certain copyrighted works (makeup designs created for the cast of the Broadway musical Cats) which were actually infringed and by identifying specific national and international stage productions, videos and commercial products in which these makeup designs were actually published and used. Carell, supra, 104 F.Supp.2d at 251. Plaintiffs’ citation to Elektra Entertainment Group Inc. v. Bryant, 03 Civ. 6381, 2004 WL 783123 (C.D. Cal. Feb. 13, 2004) is an insult to the intelligence of the Court. That case was a default judgment. How and why the Court's decision became published is a mystery. Neither were they playing cricket in citing BMG Music et al. v. Conklin, Case No. H-05-1482 without disclosing to the Court that Conklin is a pro se defendant (exhibit A) who, in his own way, made a motion to dismiss, but did not brief the issues briefed in this Court or the court below, and who had no chance to submit reply papers. The District Judge in Houston denied Mr.
As plaintiffs well know, In re Napster, Inc., supra, distinguished Hotaling on that very ground, that the defendant in Hotaling “had made actual, unauthorized copies of the copyrighted genealogical material available to borrowers at its branch libraries.” In re Napster, Inc., supra, 377 F.Supp.2d at 803 (italics added). -8-
Conklin's motion in a one sentence order that gave no information as to the reasons for the ruling, which as this Court knows might have been based on untimeliness, or upon his having made admissions of copyright infringement in court, or myriad other possible grounds. And it is certain that the Texas District Court Judge did not have before him all of the applicable legal authorities and appropriate arguments that needed to be presented. In other words, of the 14,800 cases so far instituted by plaintiffs, using the same exact language in each and every complaint (or at least in every complaint the undersigned has seen), the two (2) authorities they could cite for the sufficiency of their complaint were (a) a default judgment, and (b) a one-sentence order issued without any decision or mention of the grounds for the order, disposing of an unbriefed motion made by an unrepresented pro se litigant. And in each instance, they omitted to advise the Court of these limitations, but left it to their adversaries to do so in reply papers. They likewise waste the Court's time in citing BMG Music v. Gonzalez, 03 C 6276, 2005 WL 106592 (N.D.Ill. Jan. 7, 2005) and Sony Music Corp. v. Scott, 03 Civ. 6886 (S.D.N.Y. Feb. 18, 2005), both of which granted summary judgment motions upon the basis of each defendant’s admission of copyright infringement. (In Scott, the pro se defendant denied liability but was deemed him to have admitted liability because he did not timely respond to a discovery request.) The legal sufficiency of the complaint was not at issue in either Gonzalez or Scott. Since the Complaint fails to allege any specific acts of copyright infringement by defendant, the Complaint is subject to dismissal. Marvullo, supra, 105 F.Supp.2d at 230; Stampone, supra, 05 Civ. 1921, 2005 WL 1694073 at *2; DiMaggio, supra, 97 Civ. 7767, 1998 WL 549690 at *2 & n.3 (dismissing copyright claim for lack of specificity; complaint referred to “nebulous
multiple images” and did not specify what specific images were infringed). The subpoena should therefore be quashed. Columbia Insurance, supra, 185 F.R.D. at 579; Sony Music Entertainment, supra, 326 F.Supp.2d at 564-65; Eubanks, supra, 89 Civ. 8864, 1990 WL 186579 at *1; Dendrite International, supra, 342 N.J.Super. at 141, 775 A.2d at 760. Moreover, the Complaint should also be dismissed because it does not allege “during what time” the alleged infringement took place. Marvullo, supra, 105 F.Supp.2d at 230; Brought to Life Music, supra, 2003 WL 296561 at *1; Plunket v. Doyle, 2001 WL 175252 at *4-6 (S.D.N.Y. Feb. 22, 2001). Appellees’ claim that they satisfied the requirement of pleading the time of infringement by alleging a “continuing infringement” such as those found in Franklin Electronic Publishers v. Unisonic Prod. Corp., 763 F.Supp. 1 (S.D.N.Y. 1991), and Home & Nature Inc. v. Sherman Specialty Co., 322 F.Supp.2d 260 (E.D.N.Y. 2004) is unavailing. Appellee’s Response pp. 14-15. This argument suffers from the same pleading deficiencies described above, in that the allegation of continuing infringement in paragraph 23 of the Complaint is conclusory pleaded upon information and belief without setting forth a factual basis for such information and belief. Since the Complaint does not allege even one instance of actual infringement, there is no basis for claiming that it sufficiently alleges a continuing one. Appellees’ attempt to hide behind a “continuing infringement” allegation, since they do not know of any infringements, is gamesmanship. Plaintiff’s contention that the standard of review which should be applied to the October 14th order is “abuse of discretion” (Appellees’ Response p. 2), is simply wrong. The sole basis urged by movant for quashing the subpoena was the insufficient and sham nature of the
underlying complaint, which is a question of law. It is well established that matters of law are reviewed by this Court de novo. See eg Well-Made Toy MFG. Corp. v. Goffa International Corp., 354 F.3d 112 (2nd Cir. 2003). See Toussie v. Powell, 323 F.3d 178, 181 (2nd Cir. 2003) (review by this Court of a district court’s rejection of a motion to dismiss a complaint is de novo). CONCLUSION The Court should grant the within motion in all respects. Respectfully submitted, BELDOCK LEVINE & HOFFMAN LLP By: _____________________ Ray Beckerman Attorneys for Movant/Defendant Jane Doe/Appellant 99 Park Avenue (16th Floor) New York, NY 10016 (212) 490-0400