Forgot your password?
New user?
Priority Records v. Chan: RIAA Must Get Guardian Ad Litem Appointed for Suit Against 13 Year Old
Michigan court rules:
Case dismissed "with prejudice" against mother;
No attorneys fees;
Guradian ad litem must be appointed for 13 year old defendant.
In an actively contested case in federal court in Michigan, Priority Records LLC et al v. Candy Chan, the RIAA was forced to withdraw its case against a mother. Priority Records v. Candy Chan, U.S. District Court Eastern District of Michigan Southern Division
Case No. 04-cv-73645-DT Honorable: Lawrence Zatkoff.
The RIAA sued the defendant Candy Chan, who had no experience or knowledge of computers. It was possible that her 13 year old daughter may have had a file sharing account.
The RIAA continued to argue that Ms. Chan was indirectly liable for providing a computer to her teenage daughter. After taking Ms. Chan's deposition, the RIAA moved to add the 13 year old child as a defendant.
Ms. Chan's attorney, John Hermann of Berkley, Michigan, objected, arguing that the daughter was a minor and that the Court would have to appoint a guardian ad litem to protect the interests of the child, before for the child before they could proceed.
In the meantime, Mr. Hermann indicated that he would make a motion for summary judgment on behalf of Ms. Chan.
The RIAA then immediately moved to withdraw its own case against the mother.
The Judge granted the motion.
A copy of Judge Zatkoff's opinion, order, and judgment is posted at http://info.riaalawsuits.us/priority_chan/chan_order_1.pdf.
Judge Zatkoff declined to award Ms. Chan attorneys fees, holding that in his opinion plaintiffs' lawyers had "taken reasonable steps to try to prosecute this case and litigate against the proper defendants" and that "[t]o the extent Candy Chan has incurred legal fees in this action, such fees are primarily the result of tactics designed to imped the ability of Plaintiffs to prosecute this action in an efficient manner" and because "Candy Chan has not agreed to fairly simple mechanisms which would accomplish the same objectives that the filing of motions has accomplished." http://info.riaalawsuits.us/priority_chan/chan_order_1.pdf
The Court dismissed the case "with prejudice" (which means that it could never again be reinstituted against the defendant).
Subsequently, the RIAA plaintiffs made another motion. They asked the Judge to amend the judgment to allow them to continue the lawsuit against the 13 year old daughter through a guardian ad litem.
The Court denied the motion. http://info.riaalawsuits.us/priority_chan/chan_order_2.pdf.
Judge Zatkoff held that a guardian ad litem would have to be appointed for the 13 year old daughter, regardless of whether the old action was allowed to proceed, or a new action was commenced, and that the only additional work was his having to spend the time to review and decide plaintiff's motion. http://info.riaalawsuits.us/priority_chan/chan_order_2.pdf.
Ms. Chan was represented by:
John Hermann
Attorney at Law
2684 West Eleven Mile Road
Berkley, MI 48072
248-591-9291
248-591-2304 fax
JTHermanos@Earthlink.net
- Posted by Ray Beckerman, Attorney posted at September 16, 2005
- Permalink
- ¦
- Comment (34)
2. The RIAA can't sue the child unless a special guardian ad litem is appointed by the Court to protect the interests of the child. This is a major protection for children who are being targeted by the RIAA, and it will be a major problem for the RIAA to contend with.
3. According to one federal judge in Michigan, it is inappropriate to award attorneys fees against the RIAA if they take all reasonable measures to make sure they are suing the right person.
In any case, this ruling is unlikely to have a substantive effect on the RIAA’s enforcement efforts. The issues presented under these facts should not limit or deter the RIAA’s overall efforts, but, instead, help parse down the procedural issues and define the most efficient strike zone when again faced with similar facts.
Mrs. Chan would not in any way be in a position to look out for the interests of the child in a litigation. Plus, who would pay her? When a guardian ad litem is appointed at the behest of the RIAA, the money to compensate the GAL will have to come from the RIAA.
They will be more selective and bring cases only where they have actual evidence of an actual copyright infringement, at least where the defendant is a minor. In the 15 or so cases I have seen, they did not have such evidence in ANY of them.
The court simply adhered to the simple rule that when a child is sued there must be a guardian ad litem to protect the child's interests.
1. No where in the Judge's orders did it state that the RIAA cannot sue the parent for what the child did. You assume that because the Judge was willing to dismiss the case against the mother with prejudice, that that somehow meant that a parent cannot be sued for what a child does. That is a stretch at best. If that is what the judge meant, he would have stated it. He didn't. Parents can be sued and held responsible for what their children do. It is a matter of on what grounds the original suit was filed.
2. The Judge's orders are quite clear that the RIAA can indeed sue a minor. In fact, the Judge gave the RIAA two months to add defendants to the case and would agree to a RIAA motion for leave to add the daughter as a defendent, but only if the RIAA agreed to dismiss with prejudice, the case against the mother. In the second order, the Judge stated that guardian ad litem "will have to be appointed" for the daughter.
I do not agree with Mousky's analysis, and he/she seems to be reading too much into the report of the case.
If Mousky finds anything inaccuarate in that report, he should let me know. He/she should not be creating inferences and then debunking them.
1. A guardian ad litem has to be appointed if they're suing a child.
2. In this case, where the defendant had moved for summary judgment, the plaintiff's motion to dismiss its own case WITHOUT PREJUDICE was unacceptable, but a motion for dismissal WITH PREJUDICE was acceptable and would be granted. (without prejudice means she could be sued again later, with prejudice means she could never be sued again)
3. Under the circumstances of that case, attorneys fees were not awarded.
Neither Mousky nor I know what the circumstances were that caused the court to deny attorneys fees, but we know that it included some unspecified ltigation tactics of Mrs. Chan. So to say that the Court 'legitimized' plaintiff's conduct is not wholly accurate. While I was disappointed at the Court's failure to award attorneys fees in the Chan case, neither Mousky nor I know what conduct by RIAA counsel was or was not 'legitimized' or what conduct by defense counsel was found to be somewhat abhorrent.
And the court clearly implied that the mother was not a proper party.
getreal is partially correct. It is probably so that the need to appoint a guardian ad litem is a Michigan state law question. However, copyright liability of a mother for a child's copyright infringement would be a federal question, I believe.
sorry, eric g, i have no information on which file sharing program, if any, brittany was using
Thank you, John, and thank you also for your excellent work on behalf of the RIAA/MPAA victims.
Q. Given that a 13 year old likely has no assets, what could the RIAA possibly achieve from this?
A. Nothing.
Q. If they prove infringement, would they be able to garnish future wages from the 13 year old?
A. No.
Q. Not to mention, my understanding was that minors can't legally enter into contracts. How would EULA contract issues complicate the procedings?
A. A copyright infringement case isn't a contract case. That being said, I think the child's youth would be a factor, and I think the child would very likely win the case.
I just had one question, in response to Mr. Hermann's post. If you were working on the case pro bono, does that not mean there were no attorney's fees, and hence the judge awarding them (for a grand total of $0) would be essentially meaningless?
This post only serves to improve pageranks and higher listings on search engines since this page is quickly becoming important. In other words, your blog just got spammed - remove it asap please or else you'll have legions of spam bloggers corrupting this blog in no time. Thanks.
So there is a tangible cost involved that can be compensated for if a judge decides the case merits it. The awarding of legal fees likely has nothing to do with the defendant but rather the nature of the case brought so the pro bono issue is irrelevant.
I'm speculating here, so if anyone with legal experience cares to correct me feel free.
The attorneys fees are vital for several reasons, regardless of whether the attorney is doing it 'pro bono' or not.
1. The only way to deter the RIAA from bringing frivolous cases and from taking frivolous action in those cases is to award attorneys fees against them.
2. Attorneys, like everyone else, have to make a living. If they are not going to get paid, they are limited in how many cases they can take. Some attorneys can't afford to take pro bono cases at all, but if they know there is a likelihood that the client will get a fee award, then they can afford to take it.
3. Most of the people being sued can't afford to spend a lot on legal fees.
4. Even those who can afford legal fees shouldn't be penalized. They should be able to get the attorneys fees back from the RIAA for suing them without any reason.
Even if the litigant doesn't have to pay the legal fees, the court can award the reasonable value of the services to that litigant, hence to his/her attorney.
I.e. if Mr. Hermann put in $20,000 worth of legal services, the court can award him $20,000.
My reading of the decision indicates that the RIAA chose to sue Candy Chan because the filesharing occurred on an IP address for which she was the registered user, not because she provided a computer to her teenage daughter.
In fact, my recollection of the Supreme Court's Betamax decision is that whether a device like a computer can be seen as providing an instrument of contributory infringement depends on whether the device has "substantial" non-infringing uses as well. Is the RIAA really prosecuting parents simply for provider a computer to their minor children who might then engage in file sharing? Isn't this likely to be a legal dead-end?
It is amusing that you accuse me of "reading too much into the report of the case", when I could accuse of the same. I was not referring to your report but to your response to 'Not a lawyer'. You state that these decisions mean, among other things, that the "RIAA realized it can't sue the parent for what the child did". It sure could sue the parent for what the child did, but decided not to go that route.
In your response to my post you state that "the court clearly implied that the mother was not a proper party." Not being a proper party does not imply that that the mother cannot be held liable or sued for the actions of the child. This is where I take isse with your replies (but not your report). Let's agree to disagree.
I don't know if you are aware, but several online "news" sites have linked to this thread. You should read some of their stories. They are "reporting" that the Court overturned the RIAA case (which is false), that the Court ruled that parents are not liable for the actions of their children (again, false), and that the RIAA cannot sue children (false - it can, since the Court would assign a Guardian Ad Litem).
It's great to see someone stand up for the little guy. I think what you're doing is great!
In Mr. Hermann's postscript, he notes that the RIAA is resisting attempts to depose RIAA investigators. How are they able to get away with that?
Also, he states that the RIAA is taking statements from family members to use against the target of the suit. What if anything can be done to counter that? Who is taking the statements? Are family members obligated to say anythig at all?
Charles
This is very interesting, enlightening and refreshing reading. Your comments are all valuable because I am putting the finishing touches on my Digital Rights Management (DRM) research paper. The music industry has committed some awful fauxpas in trying to eliminate competition from consumers and competitors using disruptive technologies such as P2P file-sharing networks.
The industry's RIAA and cohorts around the world are recognizing that consumers adroitly manage new technologies that are causing so much disintermediation angst. The unmitigated intimidation by intractable corporations wishing to keep their outdated business models must cease.
The criminalization of an industry’s consumer-base for merely appreciating and sharing music with or without permission, payment or profit must with all deliberate speed be reversed by policymakers on behalf of consumers and creators. The day of middlemen industries sapping cultural properties is coming to a screeching halt as we can now support and influence intellectual property content creation by directly paying the artists.
Charmaigne
You are right that I misinterpreted what you were referring to -- I.e. my subsequent comment, rather than the original post. As to the substance of your comment, you may be forgetting that the RIAA moved to withdraw the case WITHOUT PREJUDICE and that motion was denied. Therefore it was incumbent upon them to litigate any meritorious claims they had. You can be sure that if they had a case against the mother they would have asserted it.
You are right that I used the wrong term by saying that the court concluded she was not "a proper party". I guess that's what happens when a lawyer like myself tries to make things more intelligible to lay people. What the court did hold is that it would not accept a discontinuance WITHOUT PREJUDICE which means that the Court felt that Mrs. Chan's motion for summary judgment was meritorious.
Thanks for the info, Mousky. Of course I can't keep up with all of it, but it is true that it was implicit in the Court's rulings taken as a whole that the mother had a very strong defense. Of course there were no blanket rulings of the types which you mention. I want to thank you very much for your astute, skeptical reading, and for helping to keep me on my toes.
Also, he states that the RIAA is taking statements from family members to use against the target of the suit. What if anything can be done to counter that? Who is taking the statements? Are family members obligated to say anything at all?
1. They can't and won't get away with it.
2. No one ever has to give, or should give, a "statement" to anyone, other than law enforcement officers. In the context of a lawsuit, they may or may not be able to subpoena, and depose, certain nonparties to the litigation, depending on whether or not the judge allows it. But if it happens, there would be numerous procedural safeguards, and the procedure would be costly for the RIAA.
This is very interesting, enlightening and refreshing reading. Your comments are all valuable because I am putting the finishing touches on my Digital Rights Management (DRM) research paper. The music industry has committed some awful fauxpas in trying to eliminate competition from consumers and competitors using disruptive technologies such as P2P file-sharing networks.
Thanks, Charmaigne, both for your kind words, and for the important work you are doing.
I'm really glad that the RIAA got this thrown in their face, and I really hope it gets better media exposure. I want them to look bad for this!
What really bothers me though, is that the judge didn't award legal fees (regardless of pro bono status). If I read/translate this properly, was this not allowed because the plaintif made a reasonable attempt to essentially "settle out of court?" If so, the standard for them (RIAA) is to tell their newest victim to pay a collection agency $X-thousand to avoid this case going to court. To me, this looks like legalized blackmail. How is it that the courts can see this as a legitimate way of saving the court's time? From the judge's comments, it appeared to me that he was penalizing the mom for NOT paying protection money, and that he's actually *encouraging* this practice. I sure hope I'm reading that wrong...
soma record
magazine soma
cialis forum
generic soft tab cialis
book drug guest levitra
2004 daily levitra order statistics
coupon
coupon free
printable
coupon restaurant
pizza
http://coupon-printable.rxurrp.info coupon printable
restaurant
coupon free
coupon
coupon
hut
http://coupon-printable.rxurrp.info coupon
restaurant
code coupon
pizza
code
pizza hut coupon
http://code-coupon.rxurrp.info code
grocery store
free burger king
coupon
las coupon
tv coupon
http://chuck-e-cheese-token-coupon.tabag.info cheese token coupon