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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ---------------CAPITAL RECORDS, INC., ET AL., PLAINTIFFS ) ) ) ) ) ) ) ) ) PLAINTIFFS ) ) ) DEFENDANTS ----------------MOTION HEARING JUNE 17, 2008 2:58 P.M. BEFORE THE HONORABLE NANCY GERTNER UNITED STATES DISTRICT COURT JUDGE ) CV. NO. 04-12434-NG COURTROOM NO. 2 1 COURTHOUSE WAY BOSTON, MA 02210 CV. NO. 03-11661-NG
NOOR ALAUJAN, ET AL., DEFENDANTS ---------------LONDON-SIRE RECORDS, INC., ET AL.,
VALERIE A. O'HARA OFFICIAL COURT REPORTER
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A P P E A R A N C E S: For The Plaintiffs: Arnowitz & Goldberg, by SIMON B. MANN, ESQ., 4 Charlesview Road, Suite 4, Boston, Massachusetts for the Plaintiffs; 02441,
Robinson & Cole, LLP, by CLAIRE NEWTON, ATTORNEY, One Boston Place, Boston, Massachusetts 02108-4404, for the Plaintiffs; Holme, Roberts & Owen LLP, by LAURIE J. RUST, ATTORNEY, and EVE GOLDSTEIN BURTON, ATTORNEY, 1700 Lincoln Street, Suite 4100, Denver, Colorado 80203-4541, for the Plaintiffs. ALSO PRESENT:
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Joel Tenenbaum Judie Tenebaum Tracy Lawrence Melissa DeSisto Alphon Atkinson
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK:
PROCEEDINGS All rise. United States District
Court is now in session. THE COURT: You can all be seated. Let me sort of There have
start by just going through where we are.
been by my count 133 cases against named individuals, and there is some quantity which we didn't quantify yet against unnamed individuals, and what we have today are really three levels of cases, there are those who have answered and who are named, and there are various discovery motions with respect to them. In that category these include people who I just wanted to name the people in that category, Mr. Hallahan, Shawn Scott, Mr. Tenenbaum, Eugenia and Alex Shnayder. Okay. Then the next category are those
who have not answered or ever appeared in the case in any way. They were issued an order to appear for this
hearing, and if they did not, a default judgment would issue, and those individuals are Tracy Lawrence,
Richard Dubrock, Donna Scott, Melissa Desisto, Kristina Ferrara, Michael Sturge, Maria Mojica, Edward Dutcher, Elisa Cantone, Mandy Ladebauche, Robin Heenan, Yesenia Crespo, Henry Goldfarb, Christopher Savasta and possibly Robert Pena, then there are those individuals who have answered or as to whom a judgment entered,
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either because there was a settlement judgment or because they defaulted and the record companies are seeking to collect on the judgment. So let's start first with the people who have answered and as to whom there are discovery issues, in other words, where the record companies are seeking to get information or trying to get, seeking information, let's put it that way. There is a motion to preserve
evidence as to Ryan Hallahan, Mr. Hallahan's, the parties have stipulated to Mr. Hallahan's dismissal, so this motion is moot; does everyone agree? MS. RUST: THE COURT: That is correct, your Honor. Shawn Scott, the defendants have moved
to dismiss the case against Shawn Scott without prejudice. MS. RUST: THE COURT: That is correct, your Honor. That would be dismissed. I
Mr. Tenenbaum, did anyone get in touch with you? sent numbers of lawyers your way. MR. TENENBAUM: THE COURT: No.
So you have filed a motion to amend
your answer to raise a whole host of constitutional issues. I will allow you to amend your answer. I
still want to find you a lawyer, I'm not giving up. Did you get a call from an individual named Charlie
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Nesson or someone from the Berkman Center? MR. TENENBAUM: THE COURT: No, your Honor.
Talk to my clerk and make sure we have
all of your numbers. MS. RUST: Your Honor, if I may, can plaintiffs
clarify, please, is Mr. Tenenbaum permitted to amend his answer in order to assert an affirmative defense in counterclaim, and which affirmative defense? THE COURT: I'm allowing him to amend his Answer I hope
to include all the grounds that he has listed.
to have counsel for him to be able to pare it down, but right now I'd allow him to amend the Answer, and we'll sort it out later. MS. RUST: THE COURT: Thank you, your Honor. At the end of this proceeding,
Mr. Tenenbaum, if you could talk to Ms. Molloy and make sure we have all your recent numbers. dismiss the Shnayders -MS. RUST: Your Honor, pardon, if I may, regarding A motion to
Tenenbaum before we move on. THE COURT: MS. RUST: Yes. Plaintiffs recently submitted to the It's
Court a letter regarding the status of this case. about Mr. Tenenbaum and Mr. Shnayder.
In that letter,
plaintiffs indicated that this case has essentially
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been stayed since January 29th, since the previous status conference, and, in fact, your Honor, upon review of the file, it actually appears this case has been stayed since approximately October of 2007. At
this point in time, plaintiffs do request permission to proceed with discovery as they have served discovery but have not received any responses from defendant. THE COURT: been served? MS. RUST: Correct, your Honor, they were served Outstanding discovery requests have
on defendant on December 5th, 2008. THE COURT: Okay. Your Honor, if I may, my son has a
MS. TENENBAUM: letter. MR. TENENBAUM:
I have a letter dated
April 1st, 2008, writing to the plaintiff as to why I had not responded saying I was waiting to hear about defense counsel provided for by the Court. THE COURT: Yes. I wrote this letter, telling
MR. TENENBAUM:
them why it was delayed. THE COURT: The delay at this point, really we
have been trying to get him counsel, and I think he has a right to rely on my representations that he can get counsel. If your point is going forward, that's a
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different issue.
What I'm going to do then is I'm
going to give him -- because we've continued to try to get him counsel, I'm going to give him two months to respond to the discovery which will be then mid-August. THE CLERK: THE COURT: THE CLERK: it's a Monday. THE COURT: Yes. Mr. Tenenbaum, I'm still going Do you want me to give a date? Yes. 17th, it would have to be August 18th,
to try to see if we can get counsel for you, but if we cannot, you will be obliged to respond. MR. TENENBAUM: MS. RUST: Thank you, your Honor.
Your Honor, while we're on this case,
if Mr. Tenenbaum is permitted until August 18th to respond to discovery, we will have past the deadlines set by this Court in the scheduling order that was set at the January 29th status conference. THE COURT: So you submit something that reflects
changed deadlines. MS. RUST: regarding that? THE COURT: MS. RUST: Yes, you should. Thank you, your Honor. Your Honor, Should we confer with defendant
would it be possible to set August 18th as the deadline
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in which to submit an Amended Answer as well? THE COURT: MS. RUST: Yes. Thank you, your Honor. Is it possible, your Honor, we My son has some information that he
MS. TENENBAUM: could reschedule?
would like to share with the Court, and that's information these people want that might be a helpful thing to sort of cut to the chase for a little bit, for example, he got a letter saying that we've been represented by counsel. She never represented him, and
I don't know if that will help speed up any of what it is. THE COURT: No, the thing is this: I've said this
before in open court. these cases.
There is a huge imbalance in
The record companies are represented by The law is
large lawfirms with substantial resources. also overwhelmingly on their side.
They bring cases
against individuals, individuals who don't have lawyers and don't have access to lawyers and who don't understand their legal rights. Some category of individuals are defaulted because they read the summons, and they haven't the foggiest idea what it means and don't know where to go, so they're defaulted, and they owe money anywhere from $3,000 to $10,000 as a result of these defaults.
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Sometimes they answer and get counsel, and because the law is so overwhelmingly on the side of the record companies, there's a negotiated settlement which is slightly lower than the settlement the people that are unrepresented have been getting, in other words, with a lawyer you can get some kind of leverage, but it is a delaying game in some sense, and I'm allowing Mr. Tenenbaum's motion to amend his complaint to add additional, amend his answer rather to add additional claims because if someone wants to fight these, they should be able to fight these complaints. As I said, it does not make sense, however, to fight them alone. It simply doesn't make sense to
fight them as an individual, per se, and to some degree you run the risk that the longer you litigate without really having a basis to do so, the longer you fight without having a basis to do so, the plaintiff's legal fees go up and up. I can't say this is a situation that is a good situation or a fair situation, it is, however, the situation. So, while your son might have things to say
about counsel or not counsel, if you really wish to stand and fight, you need to have legal representation because otherwise all you're going to do is stand in place, their fees go up and we'll end this case with
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the higher end of the statutory damages rather than the lower end. Really these cases have been resolved
anywhere from $3,000 to $10,000. MRS. TENENBAUM: My son was offered $12,000, your We've
Honor, and every time we appear that goes up. offered it time and time again since this very inception. They won't -Is that right?
THE COURT:
Have they been trying
to compromise the claim without a lawyer? MS. RUST: Your Honor, I believe that
Mrs. Tenenbaum is referring to negotiations that took place before the January 29th status conference in which you said that you would appoint pro bono counsel. When Mr. Tenenbaum filed his motion to amend his motion for summary judgment and his motion to dismiss, at that point in time we did in fact -- and two motions for sanctions, we did in fact discuss settlement. At that
point we did have a settlement number and we did explain exactly what you've just said that as our legal fees go up, so will the settlement amount that we offer. THE COURT: amend. I'm going to accept his motion to
I'm going to keep the deadlines, but at the
conclusion of this, I order a settlement conference to take place right here and now so that this is the end.
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You know, it seems to me that counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers, to fully understand that, more than just how do we serve them, but just to understand that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it, so there will be a settlement conference in the Tenenbaum case at the conclusion of this hearing. What is the situation with respect to Shnayder? MS. RUST: Your Honor, it appears that
Mr. Shnayder has not appeared today in controvention of your Honor's order. In fact, Mr. Shnayder has never He was served in February with
answered the complaint.
a copy of the complaint, and since that point in time, plaintiff's counsel has made several attempts to reach out to Mr. Shnayder, both by telephone and in writing. I believe I included a copy of the most recent letter to Mr. Shnayder in May reminding him of his obligation to answer the complaint and letting him know that if he did not answer the complaint that plaintiffs reserved their right to seek a default judgment against him. In addition, your Honor, my colleague, Eve Burton, did have an extensive conversation with Mr. Shnayder at the conclusion of the January 29th status conference to
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make sure that he understood that he had admitted liability for the infringement of the copyright and that we wished to -- that we wished to settle this claim rather than proceed with a motion for summary judgment. He promised he would get back to us Contrary to that, your Honor, he
regarding settlement.
has refused to return phone calls, he has refused to engage in any conversation. THE COURT: MS. RUST: Are you sure you have his address? I am sure, your Honor. I have
contacted him, I have spoken to him briefly on the phone, but he simply refuses to engage in this conversation. THE COURT: And so what are you proposing, I
default him and whatever you want to charge should be charged to him? MS. RUST: What are you proposing? My proposal, your Honor, is that we
give him leave to default Mr. Shnayder in addition to failing to answer the complaint, in addition to failing to appear at this conference after having received your Honor's order and in addition to flatly refusing to engage in any form of settlement negotiations, plaintiffs believe that the only course of action left is to default him. THE COURT: File a motion to default and I will
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look at it.
Serve it on him.
Give me proof that it
has been served on him. MS. RUST: service? THE COURT: MS. RUST: THE COURT: Personal service. Thank you, your Honor. The difficulty, of course, now is that Your Honor, do you prefer personal
we are five years into this case and so there are people who have already paid numbers that I've described, so to some degree by giving a break, assuming I could, to the defendants going forward it is unfair to the people who have in fact paid these amounts of money. In other words, what I've done in
this case, the best that I can do given the state of the law and the unequal resources is to try to level the playing field as best I can, to try to find lawyers, the lawyers look at a case in which the law is so overwhelmingly on the side of the record companies and say why should we get involved? So the group of lawyers that we're trying to get to represent you all is not a very large group, which is why we've had difficulty assigning lawyers to you. So, you're left to deal with very substantial defendants on your own, and as I said, the most I can do is make sure that you know what's going on, that you
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know what you're facing, that if we can get you lawyers, we'll get you lawyers, and I'll entertain motions that you have. So that's with respect to Shnayder, you're going to file a motion to default; with respect to Hallahan, Hallahan is dismissed? MS. RUST: THE COURT: That's correct, your Honor. Then there are those people who have
never been represented or appeared in the case in any way even though they were served, is that right? That's the next category. MS. RUST: THE COURT: Correct, your Honor. You have asked for -- you have filed
motions for default in each of these cases? MS. RUST: THE COURT: That's correct, your Honor. Now, the damages in these cases, are
any of these individuals present, Tracy Lawrence, you're here? MS. LAWRENCE: THE COURT: I'm here, your Honor. The record
Why don't you stand.
companies have moved to default you and request damages in the amount of almost $6,000. that? MS. LAWRENCE: THE COURT: I do, your Honor. Do you understand
You could pay the money and settle the
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case, you can negotiate with them to see if there's some way around it, you can try to get a lawyer to try to set aside the default. do? MS. LAWRENCE: Your Honor, this case has been Do you know what you want to
going for about four or five years, as you stated. Originally -- obviously I can't afford an attorney, and I've tried to find attorneys, and there's a shortage or none available. Originally I had tried to settle
several times because, once again, we had a computer in the main area of our home which had several uses, so rather -- not that I was admitting guilt, but rather than continuing this, and the fees were getting pretty large, I have tried to settle. When I told them my financial status, they had sent a constable to look at some papers to my home, which is the home of my boyfriend, and it just happens to be a larger home. I did have an attorney at one He said, well, they've
point, and he had called me. seen your house. it.
It's not my home, my name is not on
They were faxed information that shows I have
nothing to do with this home, it's my boyfriend's home probably owned for five or six years, we've been there for two years. I filed a hardship with the attorney that was sent
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to them, and then there was some paperwork that had gone back and forth, and the attorney had an incorrect date. It was probably dated for August and backdated My
or whatnot, so last I had heard there was nothing. attorneys sent them a hardship.
I never heard another
word, had no idea what the status was, assumed that maybe because of my hardship and being a single parent that they just decided I wasn't worth pursuing, and then once again I get another paper saying they would like to reopen it. before. I have called on numerous occasions
I never heard about by hardship, I didn't
continue to contact them, however, I did leave the attorneys several messages. THE COURT: You understand, here's the problem. They file a I
keep on explaining the very same thing. complaint, you have to answer.
If when the complaint
is served on you, you don't answer, they come in and they default you, which means they're entitled to the relief they requested because you haven't fought, right. They're not obliged to settle with you, but The longer you wait without a
they certainly should.
lawyer, without fighting, the more the damages mount. MS. LAWRENCE: attorney. THE COURT: You had an attorney? I did, they had contact with my
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MR. LAWRENCE:
I did.
I never met with him
because he did a little bit of work for me which I'm sure you have the paperwork. paperwork. I no longer have the He did my
I'm no longer in the home.
hardship papers.
At that point I wasn't working, at
this point, I am, but all that information was provided. THE COURT: MS. RUST: Is that right, Ms. Rust? Yes, your Honor. Your Honor, we were He
in contact with an attorney named Richard Comenzo.
represented that Ms. Lawrence was a single mother and did have financial difficulties. When we did a quick
public records search, we did see that she lives in a home that was over $300,000 and was associated with a home that was valued at $675,000. Now, wanting to
believe the attorney, we said we would certainly extend the opportunity to tell us what your financial situation is so that the record companies could make an appropriate settlement amount, and we did explain, your Honor, that we would need some information as to who lived in this house worth $675,000 because our understanding was it was the defendant. Your Honor, as your Honor understands, plaintiff's hardship settlement process is certainly for those more indigent defendants, and based on the information we
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gleamed from public records, this defendant did not appear to qualify. Nonetheless, we sent paperwork and
said please explain, tell us who this is, if you don't live there, please tell us. The attorney, in fact, Mr. I personally
Comenzo never returned paperwork to us.
left several voice mail messages for him in an attempt to get this information. He never returned it.
Ms. Lawrence did actually leave me several voice mail messages, and each time I returned her call and said I need your attorney to tell me that he no longer represents you in order to satisfy my ethical obligations. We never heard back from the attorney and
never heard back from Ms. Lawrence that the attorney didn't represent her. MS. LAWRENCE: Your Honor, my boyfriend has owned I have no interest in that
that home for six years. home.
They're valuing at whatever, there's no My thing, it's not my home.
driveway, there's no yard.
I don't pay for it, so I feel like that's reflecting my on income. It's not my home. But, again, this is all part of the
THE COURT:
informal part of it, which is that they can accept your representations or they cannot. If they don't, then
they say you haven't answered in the formal part of the lawsuit, and they're entitled to go for statutory
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damages, so, again, with respect to Ms. Lawrence, after you finish a settlement conference with Mr. Tenenbaum, they'll be a settlement conference with Ms. Lawrence. Ms. Desisto. MS. DESISTO: THE COURT: Yes. You are someone who also has never
answered, and, again, they're seeking 6250 in damages, $6,000 in damages and 250 in costs. settlement discussions in your case? MS. DESISTO: this case. No, this is the first I've heard of Has there been any
I was never served with any papers as it
says I was on January 9th of 2006. THE COURT: It was served in your hand to your Are you
mother, so you don't know anything about this. living at home? MS. DESISTO: home. Yes.
No, currently I don't live at
At that time I would have been in school, which My IP address at school I spoke with
is when the incident occurred.
was shut off for a brief period of time.
some legal, I'm not sure if they were legal, IT department at my school on why they had put down my IT address. They had notified me that there was a
possibility of copyright infringement, that it was nothing confirmed. My computer actually wasn't in my
possession when everything went through, it was in the
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possession of the IT department being fixed. THE COURT: What do you mean at the time? You
believed at the time of this downloading it was in the possession of the IT department? MS. DESISTO: The date that they gave me as far as
when the sharing occurred was not in my possession, no. My computer was never fully in my possession for the entire month that they said the eight songs were shared. THE COURT: Okay. So Ms. Desisto at the
conclusion of this hearing, they'll have a conference with you as well, and if you could prove that, you'd be out of the case. MR. ATKINSON: Okay. Mr. Atkinson. Hi. I
Good morning, good afternoon.
didn't personally download any of those songs myself. My son had brought the computer to school only, and suddenly I understand that those songs were downloaded. I didn't do it personally, so I don't know if he downloaded the computer. THE COURT: Where is your son now? My son is 21 years old now, and he
MR. ATKINSON: is working. THE COURT:
Well, with you there was a default
judgment, there was an amount that was entered, and now the record companies are going after the assets. The
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judgment was in the amount of how much? MR. MANN: THE COURT: $4,650, your Honor. $4,650, so your son has to pay the
$4,600 unless he can show that he doesn't have any money. MR. ATKINSON: working. THE COURT: They're not asking you for this, this Okay. I'm retired now, I'm not
is your son needs to pay $4,600 to the record companies, who are in desperate need of this money, unless your son can show that he has no way of paying it. He has to respond. He has to be able to respond
to this and indicate what his assets are and what his liabilities are, do you understand? If he doesn't have
any money, he has to tell that to them. MR. ATKINSON: THE COURT: Pardon me.
If your son doesn't have any money -Well, he just left school, he
MR. ATKINSON:
doesn't have any money. THE COURT: He's in school now? He just left school, he just He doesn't have any money now.
MR. ATKINSON:
graduated from school.
He asked me to negotiate, you know, to pay some kind of funds. THE COURT: Does he owe money from his school?
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MR. ATKINSON:
He doesn't have any money right
now, he just left school. THE COURT: tuition? No, no, does he owe money from his
Oh, high school, he's in high school? No, he just graduated from the
MR. ATKINSON:
computer school so he doesn't have any money right now, so he can negotiate with the recording people to see how much he can pay. THE COURT: Counsel, you will talk to Mr. Atkinson
afterwards to negotiate. MR. MANN: Your Honor, I did speak with
Mr. Atkinson earlier, and I did mention that I'd be more than interested in discussing settlement with him, and he's already expressed that he has no inclination to do so, and, further -THE COURT: No inclination to talk to you, no
inclination to pay? MR. MANN: To settle or pay. He actually
expressed that he may want to retain counsel; however, he also said he can't afford to do so. THE COURT: This is the younger Mr. Atkinson or
this Mr. Atkinson? MR. MANN: That's what I wanted to do next. It's
my understanding that this is the gentleman that the default judgment is against and not his son, although I
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could be wrong, my understanding that this is the gentleman that the default judgment was against. MR. ATKINSON: I'm the senior, not the younger.
I'm not the one who downloaded, it was my son who downloaded, not me. I am Alphon Atkinson. My son, He's the They
Brian Atkinson, he's the one who downloaded.
kid who downloaded the songs from the internet.
come after me because my name is on the computer, but I bought the computer. At the time he downloaded, he was He didn't have a
a child, okay, and I'm the father.
job at the time, so I bought him a computer to use for school purposes only. bought a computer. They came after me because I
My name is on the computer, you see
what I'm saying, I didn't download it. THE COURT: What happens, as I said, there are
three levels of cases here, the first level of cases is where someone has answered and defended the case, and we've dealt with those cases, those are the people that have some -- where there's a discovery battle or something like that, and that's Mr. Tenenbaum, as I said, your dates are August 18th to either respond or we'll try to get you a lawyer. Then there are the
default judgment people, that's Tracy Lawrence and Ms. Desisto, and you guys are going to talk to them to see if the case can be settled, and with the Tenebaums
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as well so that the money doesn't get higher and higher. Then with respect to Mr. Atkinson, if what he says is true that he didn't do the downloading, that it was his son who did the downloading and his son has no assets, you're getting water from a stone. you pursuing here? MR. MANN: I don't know what the merits of the What are
case were when the earlier court rendered a judgment against Mr. Atkinson. THE COURT: There were no merits of the case, it
was a default judgment, all that happened, you sued, there was silence on the other side, and then you come up with a judgment of $4,000 because that's the statutory damages, and Congress says you can get it. These people never defended, if now they brought forward a defense -MR. ATKINSON: download anything. MRS. TENENBAUM: That's true of all these people, Why are they suing me? I didn't
he's been complaining forever that he has no assets and that he will file for bankruptcy, and all these people have said that's tough. MR. MANN: Your Honor, if I may, this is why we
have supplementary process, this is why we bring
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debtors into court so we can examine in fact what their ability to pay is. THE COURT: vicious cycle. But you understand this is a terribly On the one hand, you say we bring them They come into
into court so we can examine them. court without a lawyer. proceedings are.
They haven't a clue what these
We have been trying to explain it to
people, and then because they don't respond, the numbers keep on going up and up, and at a certain point after 133 cases in my court and countless around the country, the plaintiffs are going to realize this is making no sense and making them look bad. Mr. Atkinson, you did not respond to the case, they sued you, you didn't respond. When you don't
respond, the defenses that you're raising now don't get onto the court record. They may be legitimate
defenses, but you never mentioned them before, then they wind up with a judgment for $4,000. MR. ATKINSON: Let me explain to you the reason
why I didn't respond and the reason why I take so long to respond. court, okay. This is my second time coming to this When I came in the first time, there was
so many people here in tears and confusion and everything else, I didn't get to talk to the Judge, okay.
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THE COURT:
Okay. I came here, and the plaintiffs When I
MR. ATKINSON:
were crying and everybody was so confused.
walked in here, nothing else went on, I was confused myself. I walked in here and walked out of here
without knowing what's going on, so I came without knowing what's going on, okay. THE COURT: I'm going to take it as an oral motion
to set aside the default, the oral motion to set aside the default which I may grant after you talk to the record company representatives to see if they can settle the case. If it is the case that it was your
son and your son has no money because he just graduated college, then the case will be over or should be over in the rational world, okay, so I'm going to take this as an oral motion to set aside the default and after today you respond. MS. BURTON: Your Honor, if I may, this is I just feel the need, I
Eve Burton for the plaintiffs.
understand your Honor's concern, I absolutely do, and I understand your Honor is not comfortable with this litigation. The plaintiffs are in a very difficult
position, and I think it is important for the Court to at least hear the plaintiffs' side of these cases that there's massive piracy going on on the internet. It is
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occurring largely by younger people, although throughout the community, thousands of jobs have been lost. There is real economic loss associated with this ranting piracy, and there's also a lack of respect for the copyright laws. People feel like they can, because
it is anonymous on the internet, feel like they can anonymously infringe massive amounts of plaintiffs' copyright of sound recordings along with movies and other forms of media, and plaintiffs, as this Court, I'm sure is aware have pursued multiple avenues in trying to stem the tide of piracy. Not only have they pursued the peer-to-peer networks, as I know your Honor is aware of, they have been engaged in massive educational campaigns through public media as well as through the university system, and they have really made, in my opinion, a valiant attempt on multiple levels to try to stem this tide, and yet, although there has been some progress, the massive infringement continues, and plaintiffs feel that they are left with no choice but to proceed against individuals because, frankly, that is part of a multi-faceted approach to trying to stem the tied of piracy, and plaintiffs go to great lengths to try to communicate with defendants to give them lots of
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opportunities to settle. They make reasonable, in the plaintiffs' position, although I understand this Court may not always agree, they make reasonable settlement demands that increase over time as the plaintiffs are forced to expend time and money on this. They reach out at multiple levels,
both before, both allowing defendants and even before they're named when they're just a number, if you will, or a John Doe, to settle anonymously so they don't have judgments, they don't have court cases filed against them. They reach out to them and ask if they have any
defense, did anyone else do this, do you have a story to tell us, do you have exceptional circumstances? THE COURT: I appreciate that. It is this
rationale that led to this law that is so much, so protected of the record companies. The question though
first is this the way to stop it, the reasonable way to stop it, and then I have individuals in front of me. have individuals in front of me who haven't the foggiest idea what they're facing, and every effort to try to deal with it, we face the same kind of thing come before this Court alone and without counsel. We had a parent once, you remember the case, who wrote to us and said I don't know what you're talking about, my son did this, I'm going to have to kill him I
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because I don't have the money.
I mean, there have
been these stories, so this is just not the way to do it. But that's my, you know, this is not accomplishing the task. I will certainly as long as these cases are
in front of me, as I said, the best I can do is make sure people understand their rights and try to equalize the level playing field because in the final analysis no defense has worked except I wasn't the one -- two defenses have worked, it wasn't my computer and I didn't do it or I don't have a dime. Nothing else
worked, having been litigated around the country, nothing else had worked. I am perfectly open to
creative defenses, but I can only warn you that nothing has succeeded, so at this point, Mr. Atkinson, I want you to talk to counsel because if there was a wrong done in your case, let's see if we can address it. I take your point, it's not an individual issue, it's not a question of the record companies are concerned with individuals who have done something wrong, they are concerned with that, but it is part of a larger picture, and I understand the larger picture. The problem is I have to deal with human beings in front of me, and these are human beings who are facing overwhelming odds, and there is something wrong with
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that picture. MS. BURTON: As to Mr. Atkinson, your Honor,
default judgment was entered in this case in 2005, and I understand his pro se status, and we are more than happy, in fact, would like to talk to both him and his son to work to resolve this, however plaintiffs would object to any motion and any order setting aside the default. THE COURT: to be teed up. It's just a motion. I want the issue
Whether it works will depend on the
outcome of today's discussion. MS. BURTON: Hopefully, your Honor. Hopefully it
would be unnecessary. it.
Hopefully we'd like to resolve
If the motion ends up being made, we obviously
would like an opportunity to brief it given the fact it's been well over one year, in fact, three years since default judgment was entered. THE COURT: Ms. Lawrence, you had your hand up. Yes, your Honor. During the early
MS. LAWRENCE:
stages of this lawsuit, I had mentioned that my daughter -- actually, my computer is in the main area, and her and her friends would be on it listening to music, whether it was on CD or whatnot, and I happened to mention that my daughter did download this music, and what their thinking, it was my IP address, it was
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my home and I was responsible for it. THE COURT: How old is your daughter? She is 19 away at college. She was
MS. LAWRENCE:
14 or 15 when it started. THE COURT: discussions. All right, let's see if we can have
Those of you who have taken the time to
come here, had an opportunity to talk meaningful, either settlement or deal with the deadlines and litigate the case. I don't want to force people into
settlements, but you have three choices in this case, you either fight, and there are risks to that, or you settle, but what you oughten do is ignore it because if you ignore it, the numbers just keep on mounting up and you're not going to wind up -- the plaintiffs are not going to forget about you, and there are numbers of people who we asked to show up today who didn't show up, and we're going to try to reach out to them in another round. I am very patient.
Those individuals who I mentioned we'll have a settlement discussion following this, and I think that's the only issue. There are a number of default
motions that I mentioned, people who haven't shown up, and I will take those under advisement. Christopher Savasta, the order was returned unclaimed. MS. RUST: Your Honor, the Court sent Mr. Savasta
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notice of this hearing. THE COURT: MS. RUST: unclaimed. Right. Certified mail, and it was returned as
Plaintiffs then sent him to assure that he
had notice of this hearing, sent him notice via both FedEx and via U.S. mail to the same address at which he was served originally where he was served by substitute service on his sister. And, your Honor, after he was served with a complaint Mr. Savasta did call and speak to plaintiffs, so we do know that that was the correct address. It is
plaintiff's opinion that he simply did not claim the mail, but he did have service. THE COURT: And Ms. Cantone also returned as Cantone, Sturge and Ferrara
unclaimed, Elisa Cantone?
had on notice of this hearing had returned as unclaimed, same circumstances? MS. RUST: Same circumstances, your Honor. For
Ms. Cantone, let me represent to the Court we served her at the 7 Karen Street address in Revere originally, and that was on April 14th of 2007. When we received
notice that the notice of this hearing was returned as unclaimed, we sent Federal Express and U.S. mail to her both at her Karen Street address and a newer address that was showing up in Acura, in public records, as
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14 Pager Street, and we sent her notice of that hearing at both addresses that were showing up. THE COURT: Scott? MS. RUST: Ms. Ferrara had both a Framingham Same with Sturge and Ferrara and
address, which was her permanent address, as well as an Amherst, Massachusetts address, which was her school address, and, same, we sent both a Federal Express and U.S. mail notice to both of those. THE COURT: MS. RUST: And Scott? Scott, we sent her Federal Express and
U.S. mail notice to the address at which she was served, and we did have extensive discussions with Ms. Scott prior to filing this action. THE COURT: advisement. Okay. Well, I will take these under
I'm not exactly sure what I will do with
respect to the defaults, but I will look at them again. I just want assurances that the addresses that we have for them are correct. There's a conference room right
out here, an attorneys' conference room, and I'm happy to have you use it to be able to confer. THE CLERK: All rise. Thank you.
( A recess was taken.) THE CLERK: All rise. United States District You can be seated. First, I
Court is now in session.
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understand that Mr. Atkinson, that you've settled the case? MR. MANN: THE COURT: Yes. Why don't you put that on the record.
This is the case against Mr. Atkinson, it was in a default, it was in the supplementary process posture, but you've come to a settlement? MR. MANN: THE COURT: That's right. Will we have something in writing or Go right ahead.
do you want to put it on the record? MR. MANN:
Mr. Atkinson and the plaintiff have
agreed to resolve this matter on a payment plan of $50 per month. It's going to take approximately seven
years and eight months for the judgment amount to be paid off, and the judgment of $4,650 is the amount to which Mr. Atkinson will ultimately pay in full, and the payments are going to be made to the lawfirm of Arnowitz & Goldberg beginning the first payment no later than July 31st and successive $50 a month payments thereafter. THE COURT: MR. MANN: THE COURT: you very much. And no interest? No interest. Thank you. I'm glad you came. Thank
You don't have to stay.
(Whereupon, the hearing was suspended at
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3:34 p.m.) ---CERTIFICATE UNITED STATES DISTRICT COURT ) DISTRICT OF MASSACHUSETTS CITY OF BOSTON ) )
I, Valerie A. O'Hara, Registered Professional Reporter, do hereby certify that the foregoing transcript was recorded by me stenographically at the time and place aforesaid in CV No. 03-11661-NG, Capital Records vs. Alajuan and CV No. 04-12434-NG, London Sire Records vs. Does 1 through 4 and thereafter by me reduced to typewriting and is a true and accurate record of the proceedings. /S/ VALERIE A. O'HARA _________________________ VALERIE A. O'HARA REGISTERED PROFESSIONAL REPORTER