IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ATLANTIC RECORDING §

CORPORATION, ET AL. §

 §

VS. § CIVIL ACTION NO.4:06-CV-132-Y

 §

DIANE HESLEP §

 §

ORDER DENYING MOTION FOR RULE 11 SANCTIONS

The Court has before it defendant Diane Heslep’s motion

requesting that the Court impose sanctions on Plaintiffs’ attorney,

Stacy Obenhaus, and the lawfirm Gardere Wynne Sewell LLP, under

Federal Rule of Civil Procedure 11. After review, the Court finds

Heslep’s motion to be frivolous and concludes that it should be

DENIED (doc. #31).

I. Factual Background

Stacy Obenhaus is an attorney with the lawfirm Gardere Wynne

Sewell LLP. Collectively, they represent Plaintiffs, who are

recording companies that own or control exclusive rights to certain

copyrighted sound recordings. Plaintiffs contend that since the

early 1990s they have faced a massive and exponentially expanding

problem with digital piracy of their copyrighted material over the

internet. 

It is now well-known that there are numerous programs that

anyone can install onto one’s computer that will provide access to

online networks (referred to as “peer-to-peer” or “P2P” networks)

that link millions of users’ computers simultaneously to a common

peer-to-peer network throughout the world and allow a person to

 

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access, acquire (download), and distribute (upload), illegally,

billions of copyrighted sound recordings, movies, and software.

See MGM Studios, Inc., et al. v. Grokster, LTD., et al., 545 U.S.

913 (2005); A&M Records, Inc., et al. v. Napster, Inc., et al., 239

F.3d 1004 (9th Cir. 2001). Plaintiffs assert that as a result of

the rise of these peer-to-peer networks, they have sustained and

continue to sustain enormous financial losses. 

To combat this online piracy, Plaintiffs employ the

MediaSentry Managed Services unit (“MediaSentry”) of Safenet,

Incorporated, through the Recording Industry Association of

America. MediaSentry is one of the principal providers of online

anti-piracy services worldwide, and it specializes in the ability

to detect the unauthorized distribution of copyrighted materials

over the internet. MediaSentry searches the numerous peer-to-peer

networks to identify individuals illegally acquiring and distributing Plaintiffs’ copyrighted sound recordings. 

Becoming a user of a peer-to-peer network is relatively easy.

One need only download from any one of hundreds of websites on the

internet and install onto his computer the peer-to-peer software—

such as the program Kazaa, which is the program alleged to have

been used in this case. Once installed, the user can access the

peer-to-peer network and is able to search the network for any

file, including copyrighted sound recordings that have been

converted to a digital file. The user can download that copyrighted sound file, for free, and later transfer that file to a

compact disk or digital music player. Also, once that file has

 

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been downloaded onto the user’s computer, it is also available to

other users on the peer-to-peer network to access and download onto

their respective computers. Users of the peer-to-peer software and

networks download the copyrighted sound recordings into what is

called a “shared directory” onto their computer. As long as the

user turns on the sharing feature of the peer-to-peer program, any

user on the peer-to-peer network will have access to that user’s

shared directory and all of the files stored in that directory.

MediaSentry combs these peer-to-peer networks for individuals

infringing on Plaintiffs’ copyrights and gathers evidence of their

unlawful activity. MediaSentry searches for Plaintiffs’ copyrighted sound recordings over the network, views the files that a

user has in his shared directory, obtains the internet protocol

(“IP”) address and screen name of that user, and downloads a

sampling of the copyrighted recordings contained on that user’s

shared directory. In doing so, MediaSentry uses the very program

employed by the alleged infringing user.

MediaSentry captures a list of all of the files a particular

user possesses in his shared directory by taking what are called

“screen shots” of the user’s shared directory. Screen shots are

actual pictures of the screens that MediaSentry and other users on

the network view when accessing the user’s shared directory. In

other words, these screen shots are actual pictures of all of the

files available for downloading from the user’s shared directory.

Once MediaSentry has a list of all of the files contained on

a user’s shared directory, it searches the list for Plaintiffs’

 

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copyrighted recordings. If the list includes some of Plaintiffs’

copyrighted recordings, MediaSentry will download a sampling of

those recordings from the user’s shared directory on the user’s

computer. By the conclusion of its investigation of any one user,

MediaSentry will have gathered evidence of the copyrighted sound

recordings possessed on the user’s shared directory on his

computer, the metadata for each digital file, screen shots of the

user’s shared directory on his computer, the user name of the

alleged infringer, the user’s IP address, and the date and time of

the alleged infringement. 

In this case, MediaSentry observed an individual logged onto

a peer-to-peer network through the Kazaa program on January 6,

2005, at 17:42:34 eastern standard time (“EST”) using IP address

172.143.120.109. The IP address was assigned to America Online

(“AOL”), which serves as an internet service provider (“ISP”)

allowing access by its subscribers to the internet. 

Attached as Exhibit B to Plaintiffs’ complaint are a series of

the above-described screen shots taken by MediaSentry in this case.

The screen shots show approximately 850 digital sound files located

on this user’s shared directory. (Pls.’ Am. Compl. Ex. B.) The

user’s name on the network was “mke@KaZaA.” (Id.) Many of the

sound files contained on the user’s shared directory were recordings by very famous and well known artists. Plaintiffs’ own

copyrights on some of them. (Id.) The screen shots also show that

at the time this user was logged onto the network, the user’s

shared directory was available to some 2.5 million other users.

 

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1 Although, as will be discussed below, further investigation by Plaintiffs

revealed their belief that the user “mke@KaZaA” was Diane Heslep, at that time,

the user mke@KaZaA was anonymous. 

5

(Id.) The screen shots also establish that the millions of users

on the network at that time were sharing more than one billion

files. (Id.) Thus, while on the network, the user “mke@KaZaA” had

access to more than a billion files shared by more than 2.5 million

users and the more than 2.5 million users on the network would have

access to all of “mke@KaZaA’s” files on her shared directory.1

The screen shots also revealed that one of the files contained

on user “mke@KaZaA’s” shared directory was “Diane.kpl.” (Id. at

3.) The “kpl” at the end of the file identifies that file as a

Kazaa playlist file. One of the functions of the Kazaa program is

to enable the user to create Kazaa playlist files that are lists of

the audio files contained on the user’s shared directory that can

be played using Kazaa’s audio player program. This Kazaa playlist

also allows other users on the network to download the specific

files contained on that playlist from the user’s shared directory.

When creating this playlist, the user is free to assign it any name

he chooses. 

With this information, Plaintiffs filed a “John Doe” complaint

in the Federal District Court for the Eastern District of Virginia.

See Motown Record Company L.P. v. Does 1-95, No. 1:05-cv-071

(E.D.Va. 2005); (Pls.’ App. to Resp. to Mot. for Sanctions at 9-

16.) Plaintiffs obtained a subpoena under Federal Rule of Civil

Procedure 45 and served that subpoena on AOL in order to learn the

identity of the person at IP address 172.143.120.109 on January 6,

 

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2005, at 17:42:34 (EST). In response, AOL identified the user as

Diane Heslep of 609 Kelly Terrace, Arlington, Texas 76010. (Pls.’

App. to Resp. to Mot. for Sanctions at 28.) 

After learning of Heslep’s identity, Plaintiffs sent her a

notice of their intent to sue her for copyright infringement. (Id.

at 109.) The notice contained a copy of the original complaint in

this case, informed Heslep of Plaintiffs’ allegation of her

copyright infringement, and offered to settle this case. (Id.) 

After attempting unsuccessfully to reach settlement, Plaintiffs filed their copyright-infringement action against Heslep

under 17 U.S.C. § 101, et seq., on February 17, 2006. Shortly

thereafter, Heslep offered her computer hard drive to Plaintiffs

for inspection to support her assertion that she was not engaged in

any ongoing infringement of Plaintiffs’ copyrights. In a demand

letter sent to Plaintiffs on June 19, 2006, from Heslep’s attorney,

Heslep offered to allow Plaintiffs to inspect her hard drive and to

work out a suitable protection order for the evidence uncovered

through the inspection. (Id. at 33.) The letter also demanded

that Plaintiffs remove their allegation of Heslep’s ongoing

infringement in their original complaint. (Id. at 37.) The letter

threatened Rule 11 sanctions if Plaintiffs did not amend their

complaint. (Id. at 37-38.)

An inspection of Heslep’s hard drive did not occur, however,

because she demanded terms unacceptable to Plaintiffs. Among her

many demands, Heslep insisted upon a payment of $10,000 and

dismissal of all claims if the inspection showed that she was not

 

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currently engaged in copyright infringement. (Id. at 42-45.)

Plaintiffs would not agree to those terms because even if an

inspection of Heslep’s computer established that she was not

currently infringing on Plaintiffs’ copyrights, their complaint

also alleged that she had so infringed in the past. 

After learning of Heslep’s objections, Plaintiffs contacted

AOL to verify that Heslep was the subscriber to the IP address

172.143.120.109 used on January 6, 2005, at 17:42:34 (EST). (Id.

at 58.) AOL again confirmed its identification of Heslep.

According to Plaintiffs, in an effort to avoid unnecessary

litigation, they filed an amended complaint on July 14, 2006,

removing the allegation of Heslep’s ongoing and continued infringement. In their amended complaint, Plaintiffs alleged that 

on January 6, 2005, at approximately 5:42

p.m., [Heslep], without the permission or

consent of Plaintiffs, used an online media

distribution system to distribute the copyrighted recordings to the public and/or to

make the copyrighted recordings available for

distribution to others, and that, on other

occasions on or before January 6, 2005, and

continuously through January 6, 2005,

[Heslep], without the permission or consent of

Plaintiffs, used an online media distribution

system to download the copyrighted recordings,

to distribute the copyrighted recordings to

the public, and/or to make the copyrighted

recordings available for distribution to

others. In doing so, [Heslep] has violated

Plaintiffs’ exclusive rights of reproduction

and distribution. [Heslep’s] actions constitute infringement of Plaintiffs’ copyrights

and exclusive rights under copyright.

(Pls.’ Am. Compl. at 3.) After receiving the amended complaint,

Heslep responded by claiming she was at work at 5:42 p.m. (EST) on

January 6, 2005, and that she has no idea whose computer was in use

 

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at the time in question. (Pls.’ App. to Resp. to Mot. for

Sanctions at 59-66.) She also claimed that her AOL account was and

is used by secondary users, though she has never identified these

secondary users. (Id.) 

In response, Plaintiffs’ national counsel sent a letter to

Heslep’s counsel detailing the evidence they possessed of her

alleged infringement and inviting her to provide any information

regarding her claim of secondary users of her AOL account. (Id. at

70-72.) Heslep’s counsel left a voicemail with Plaintiffs’

national counsel stating he refused to communicate with them

because he regarded this as a Rule 11 issue and advised that he

would only communicate through Plaintiffs’ local counsel Obenhaus

and the lawfirm Gardere Wynne Sewell LLP. (Id. at 73.) 

Thereafter, Heslep filed a declaration claiming that Plaintiffs’ amended complaint falsely alleges she infringed on Plaintiffs’ copyright using the Kazaa program at 5:42 p.m. (EST) on

January 6, 2005. (Heslep Decl. of April 15, 2006 at ¶ 2.) Notably

absent in her declaration made under penalty of perjury, however,

is any denial of Plaintiffs’ allegation that she infringed on

Plaintiffs’ copyrights “on other occasions on or before January 6,

2005, and continuously through January 6, 2005.” (Pls.’ Am. Compl.

at 3.)(Emphasis added.); (Heslep Decl. of April 15, 2006 at 1-2.)

Heslep’s attorney also advised Plaintiffs’ attorney that AOL had

confirmed that Heslep’s screen name was not in use at 5:42 p.m.

(EST) on January 6, 2005. (Def.’s Mot. for Sanctions at 2.) 

 

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Again and in response, Plaintiffs requested Heslep produce any

evidence to support her claim that AOL confirmed that her screen

name was not in use at the time in question, and requested

information on any secondary users who have access to her AOL

account. Instead, Heslep provided emails she received from AOL.

In those emails, AOL advised Heslep that its 

records indicate that the screen name

“gocwbys8" was online using IP address

172.143.120.109 from 15:38:59 to 21:17:30

(EST) on January 6, 2005 . . . . Since the

screen name “gocwbys8" is a screen name on the

AOL account of your client, Ms. Diane Heslep,

we identified her in the April 19, 2005,

subpoena response [referring to Plaintiffs’

Rule 45 subpoena].

 (Pls.’ App. to Resp. to Mot. for Sanctions at 90.) Although AOL

gave Heslep permission to turn over those emails to Plaintiffs in

early August 2006, she did not disclose them until October 21,

after she filed her motion for sanctions on October 5.

 

II. Analysis

A. Standard

The Federal Rules of Civil Procedure are designed “to secure

the just, speedy, and inexpensive determination of every action.”

FED.R.CIV.P. 1. Rule 11 champions these goals and in pertinent part

provides, 

By presenting to the court (whether by signing, filing, submitting, or later advocating)

a pleading, written motion, or other paper, an

attorney or unrepresented party is certifying

that to the best of the person’s knowledge,

information and belief, formed after an inquiry reasonable under the circumstances,—

 

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(1) it is not being presented for any improper

purpose, such as to harass or to cause unnecessary delay or needless increase in the cost

of litigation;

(2) the claims, defenses, and other legal

contentions therein are warranted by existing

law . . .; 

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; .

. . . 

FED.R.CIV.P. 11(b). Each obligation under Rule 11 must be satisfied; violation of any justifies sanctions. See Whitehead, et al.

v. Food Max of Mississippi, Inc., et al., 332 F.3d 796, 802 (5th

Cir. 2003). In assessing whether an attorney has met his obligations under Rule 11, this Circuit applies “the ‘snapshot’ rule,

measuring the attorney’s conduct as of the time of the signing.”

FDIC v. Calhoun, et al., 34 F.3d 1291, 1296 (5th Cir. 1994). And

“the standard under which an attorney is measured is an objective,

not subjective, standard of reasonableness under the circumstances.” Whitehead, 332 F.3d at 802 (internal quotations and

citations omitted). 

 

B. Discussion

To start with, Plaintiffs have pellucidly explained the

extensive investigation that was conducted before filing suit

against Heslep for copyright infringement. Plaintiffs retained the

services of a third-party investigator whose investigation revealed

that a user had logged onto a peer-to-peer network using the Kazaa

 

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program and made available for distribution, from that user’s

shared directory on that user’s computer, more than 850 music

files. Screen shots of the user’s shared directory revealed a

Kazaa-playlist file called “Diane.kpl,” and verified that many of

Plaintiffs’ copyrighted recordings were being freely distributed to

millions of other users on the network by this user. MediaSentry’s

investigation identified the IP address used to access the

internet, and it was later traced to an AOL account controlled by

Heslep. Based on that information, the Court concludes that

Plaintiffs’ attorneys reasonably believed that Heslep was responsible or at least shared responsibility for the infringement of their

clients’ copyrights through the use of her AOL account.

The Court rejects Heslep’s characterization of this lawsuit,

and many others like it, as “predatory.” (Def.’s Mot. for

Sanctions at 3.) Plaintiffs’ attorneys brought this lawsuit not

for the purposes of harassment or to extort Heslep as she contends,

but, rather, to protect their clients’ copyrights from infringement

and to help their clients deter future infringement. The evidence

uncovered from MediaSentry’s investigation shows that Plaintiffs’

allegation of Heslep’s alleged copyright infringement have

evidentiary support and will likely have more evidentiary support

through further investigation and discovery. 

For now, our government has chosen to leave the enforcement of

copyrights, for the most part, in the hands of the copyright

holder. See 17 U.S.C. § 101, et seq. Plaintiffs face a formidable

task in trying to police the internet in an effort to reduce or put

 

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a stop to the online piracy of their copyrights. Taking aggressive

action, as Plaintiffs have, to defend their copyrights is certainly

not sanctionable conduct under Rule 11. The right to come to court

to protect one’s property rights has been recognized in this

country since its birth.

Furthermore, as detailed above, Plaintiffs went to considerable effort to work with Heslep to determine her true culpability

in this case. Plaintiffs have tried to cooperate with Heslep and

examine her computer hard drive, but she has made unreasonable

demands. Plaintiffs have repeatedly asked Heslep for information

regarding the alleged secondary users of her AOL account, but she

has provided none. And Plaintiffs have repeatedly asked to view

her evidence to support her defensive claims, but she has failed to

disclose. Time and again, Heslep has failed to back up her

assertions with any substance, leading any reasonable person to

suspect that her defensive claims are without merit. 

In her motion, Heslep argues that Plaintiffs’ attorneys should

be sanctioned because she has established that she was at work at

the exact date and time the amended complaint alleges she was

online infringing on Plaintiffs’ copyrights, that AOL has confirmed

that she was not herself online at the specific date and time in

question, and that AOL could not identify the specific computer in

use at the date and time in question. The evidence suggests that

these assertions are disingenuous, and they certainly do not

support sanctioning Plaintiffs’ attorneys. 

 

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 First, whether Heslep was at work at the exact date and time

alleged in the amended complaint is a red herring. Plaintiffs’

amended complaint does not allege that infringement of their

copyrights happened at exactly 17:42:34 (EST) on January 6, 2005.

Instead, it alleges that at 17:42:34 (EST) on January 6, 2005, “and

. . . on other occasions on or before January 6, 2005, and

continuously through January 6, 2005, . . .” Heslep infringed on

Plaintiffs’ copyrights. (Pls.’ Am. Compl. at 3.)(Emphasis added.)

Further, the evidence she provided to Plaintiffs from AOL establishes that her AOL account was online for approximately six hours

from 3:38 p.m. (EST) until 9:17 p.m. (EST). While Heslep may have

been at work at 5:42 p.m. (EST), as she claims, she has not claimed

to still have been at work at 9:17 p.m. (EST). 

Moreover, the evidence shows that alleged infringement of

Plaintiffs’ copyrights occurred using her AOL account. Even if

Heslep herself was not online on January 6 acquiring and distributing Plaintiffs’ copyrighted recordings, it’s reasonable to infer

that someone she knew and gave permission to use her AOL account

was. Thus, it is reasonable to infer that Heslep may be guilty of

contributory infringement. See Grokster, 545 U.S. at 930.

Although the copyright act does not expressly provide for liability

for infringement committed by another, “doctrines of secondary

liability [have] emerged from common-law principles and are well

established in the law.” Id. Essentially, these doctrines attach

liability upon anyone who is an aider and abetter of copyright

infringement. See Id. The evidence certainly reasonably implies

 

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that Heslep, if not directly, may have contributorily infringed on

Plaintiffs’ copyrights. This is further buttressed by the fact

that to date, although she alleges there are secondary users who

have access to her AOL account, she has refused to provide any

information to Plaintiffs regarding these secondary users—possibly

assisting those secondary users in escaping liability and obstructing Plaintiffs’ ability to enforce their copyrights. 

Second, Heslep’s claim that AOL confirmed that she was not

online at 17:42:34 (EST) on January 6, 2005, is simply false. AOL

confirmed twice for Plaintiffs that a screen name in Heslep’s AOL

account was online at the date and time in question. And the

emails Heslep provided to Plaintiffs confirm that screen name

“gocwbys8" was online at that time and is a screen name registered

to Heslep’s AOL acount. 

While that does not conclusively prove that Heslep herself

accessed the internet through AOL at the date and time in question,

neither does it prove that she did not. What it does show is that

AOL has not confirmed that Heslep herself was not online on the

date and time in question. 

Third, for the same reasons just discussed above, whether AOL

can or cannot confirm what specific computer was on the internet on

the date and time in question does not establish that Plaintiffs’

attorneys committed sanctionable conduct under Rule 11. The

evidence strongly suggests that infringement of Plaintiffs’

copyrights took place through the use of Heslep’s AOL account. “It

is not necessary that an investigation into the facts be carried to

 

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the point of absolute certainty.” Kraemer v. Grant County, et al.,

892 F.2d 686, 689 (7th Cir. 1989). The investigation need only be

reasonable under the circumstances. Thomas v. Capital Sec. Servs.,

836 F.2d 866, 875 (5th Cir. 1988). Under these circumstances,

where the piracy takes place secretly and anonymously over the

internet, and with the perpetrator not readily or easily identifiable, the investigation was more than reasonable. Moreover, the

conduct of Plaintiffs’ attorneys in attempting to resolve this

dispute with Heslep has also been more than reasonable.

Finally, the Court concludes that sanctions are appropriate in

this case, but not against Plaintiffs’ attorneys. Rather, the

Court concludes that sanctions are appropriate against Heslep’s

attorney, Thomas Kimble. Among the many prohibitions contained in

Rule 11, is one prohibiting an attorney from filing a motion for

the purposes of harassment and unnecessarily increasing the cost of

litigation. FED.R.CIV.P. 11(b); see also Browne v. NASD, Inc., No.

3:05-CV-2469-G, 2006 U.S. Dist. LEXIS 90657 at *28 (N.D.Tex.

2006)(Fish, C.J.)(stating the filing of a motion for sanctions is

itself subject to the requirements of Rule 11 and may lead to

sanctions). Kimble’s frivolous motion for sanctions clearly does

both. The Court also notes that it has already sanctioned Kimble

for opposing discovery unreasonably, in bad faith, and in violation

of Dondi Properties Corp. v. Commerce Savings & Loan Assoc., 121

F.R.D. 284 (N.D.Tex. 1988). 

The Court does not take motions for sanctions lightly. Such

motions, upon mere filing, can damage an attorney’s reputation,

 

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immediately call upon that attorney to defend his integrity, and

can place a chilling effect on the Court’s bar, preventing its

members from representing their clients with vigor and creative

advocacy, or from seeking to persuade the Court to move the law in

a new direction. Such motions, when frivolously filed, will not

only harm the attorney that is its target, but may harm the Court

as well by affecting the quality of the advocacy before it. For

this reason, frivolous motions for sanctions that harass the

opposing party’s attorney, chill that attorney’s zealous representation of his client, and needlessly increase the cost of litigation cannot go unpunished. Accordingly, the Court concludes that

sanctions are appropriate against Kimble. 

 

III. Conclusion

For the foregoing reasons, Heslep’s motion for sanctions is

DENIED. It is further ORDERED that Kimble, personally, pay

Plaintiffs’ reasonable costs, including attorney’s fees, incurred

in defending against his client’s baseless motion for sanctions.

See Browne, 2006 U.S. Dist. LEXIS 90657 at *28 (“The Court may

award to the person who prevails on a motion under Rule 11 . . .

reasonable expenses, including attorney’s fees, incurred in

presenting or opposing the motion.”). Plaintiffs shall have

fourteen days from the date of this order to submit affidavits in

support of such costs and fees, after which time Kimble shall have

 

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TRM/flg 17

seven days to file any objections to the reasonableness of the

costs and fees claimed by Plaintiffs. 

 SIGNED May 16, 2007.

 

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