Recording Industry vs The People

In Capitol v. Thomas, the Court has adjourned the briefing schedules for the determination of whether it had committed a "manifest error of law" when it accepted the RIAA's proposed jury instruction that merely "making available" constituted an infringement of the distribution right and overlooked the controlling Eighth Circuit case, National Car Rental System v. Computer Associates, which had held that there can be no infringement of the 17 USC 106(3) "distribution right" without actual dissemination of copies or phonorecords.

The new schedules are:

For the plaintiffs and defendant:

Briefs due June 23rd, at noon.
"Reply" briefs due June 30th, at noon.
Oral argument: Monday, August 4, 2008, 10:00 A.M., Federal courthouse, Duluth, MN

For amicus curiae:

Amicus curiae briefs, and motions for permission to file, due June 13th, at noon.
Opposition to any motion for leave to file amicus curiae brief due June 17th, at noon.

May 20, 2008, Order enlarging time periods for briefing schedule*
May 20, 2008, Order establishing procedures and schedule for briefing by amicus curiae*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

In Elektra v. Barker, the RIAA has filed a letter opposing Ms. Barker's request for waiver of a pre-motion conference in connection with her planned motion for reconsideration.

May 20, 2008, Letter of Richard L. Gabriel and Timothy J. Reynolds to Hon. Richard J. Sullivan (opposition to waiver of pre-motion conference for reconsideration motion)*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

For those of you who have or want to open PACER accounts, and want to help out in the fight against the RIAA's litigation campaign, here is a watch list of cases which I'd appreciate your monitoring whenever you can.

This is not an all-inclusive list of cases we are watching, but just a select list of cases that need extra watching for various reasons.

If anything happens in one of these cases, please email me the *pdf's. This will be a recurring post, in which cases will be added to and subtracted from the list, so bookmark the permalink near the bottom of this post.

The PACER login page is here. To sign up for PACER go here.

Instructions: Log in. Go to district court, then input case number. Request "docket report". If there is new activity, download *pdf file and email to me. (If you're not sure if it's important enough, email me and ask.) Thanks. -R.B.

RIAA Case Watchlist

District, Case no., Case name
Arizona: 06-2076 Atlantic v Howell
Arizona: 08-335 LaFace v Does 1-14
California:Central District: 07-2434 SONY BMG v. Williams
Connecticut: 07-232 Atlantic v. Brennan
District of Columbia: 07-1649 Arista v. Does 1-19
Michigan:Western: 07-187 LaFace v. Does 1-5
Minnesota: 06-1497 Capitol v. Thomas
Oregon: 07-6197 Arista v Does 1-17
Pennsylvania:Western District: 07-1515 Fonovisa v. Does 1-9
Rhode Island: 08-66 Arista v. Does 1-22
Virginia:Eastern District: 07-52 Interscope v Does 1-7
West Virginia:Southern District: 07-649 Arista v Does 1-7

Commentary & discussion:

p2pnet.net

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

In Arista v. Does 1-21 (renamed London-Sire v. Doe 1), "John Doe" has annexed as an exhibit to some motion papers on a procedural point, a copy of a letter written to the State Police on behalf of MediaSentry.

Request for leave to file reply nunc pro tunc with exhibit A (MediaSentry "investigative" web page) and exhibit B (letter to State Police)*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

In Arista v. Does 1-21 (renamed London-Sire v. Doe 1), the case targeting Boston University students in which students have raised the illegality of MediaSentry's unlicensed investigation, the students served a subpoena on the State Police, who on January 2nd issued an order to MediaSentry to cease and desist.

The RIAA has moved to quash the subpoena.

RIAA motion to quash subpoena served on Massachusetts State Police*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

In UMG v. Lindor, the Magistrate Judge, Robert M. Levy, in a preliminary ruling, has held that MediaSentry does not have to respond to the subpoena duces tecum served upon it.

May 16, 2008, preliminary order of Hon. Robert M. Levy, Magistrate Judge, granting MediaSentry motion to quash and RIAA motion for protective order*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

To contribute to Marie Lindor's legal defense, see below.

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.

In Elektra v. Barker, where Judge Karas rejected the RIAA's "making available" theory but suggested an alternate theory that would permit an infringement of the distribution right to be found where no copy had been disseminated, Tenise Barker is planning to make a motion for reconsideration based on recent caselaw contradicting the latter part of the March 31st decision.

May 16, 2008, Letter of Ray Beckerman to Hon. Richard J. Sullivan (re Reconsideration Motion)*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

Query to fellow practitioners:

The May 15th order entered yesterday in Capitol v. Thomas appears to indicate a knowing failure on the part of Holme Roberts & Owen to disclose to the Court contrary controlling authority, a duty which had been activated by defendant's counsel's failure to cite the case.

If this occurred, it would be a violation of the Disciplinary Rules. See, e.g. ABA Rules of Professional Conduct, Rule 3.3(a): “A lawyer shall not knowingly . . . (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel."

I do not know for a fact that this occurred, but

(a) I assume Judge Davis is correct in saying that Holme Roberts & Owen failed to disclose the National Car Rental case to the Court, and

(b) I do know for a fact that Holme Roberts & Owen was well aware of the case.

Question: In connection with the pro haec vice motions that Holme Roberts & Owen makes on a daily basis, are we, as attorneys, not obligated to bring the Capitol v. Thomas order to the attention of the Court?

I have resolved the question in the affirmative, and have notified the judge in two (2) cases in which pro haec vice motions by Holme Roberts & Owen are pending.

I would be interested in your input.

-R.B.

May 16, 2008, Letter of Ray Beckerman to Hon. David G. Trager and Hon. Robert M. Levy (Elektra v. Schwartz)(re pro haec vice motion and Capitol v. Thomas order)*
May 16, 2008, Letter of Ray Beckerman to Hon. David G. Trager and Hon. Robert M. Levy (UMG v. Lindor)(re pro haec vice motion and Capitol v. Thomas order)*

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

Thanks to ZDNet for posting ABA Rule 3.3(a). Richard Koman writes:

See ABA Rules of Professional Conduct, Rule 3.3(a): “A lawyer shall not knowingly . . . (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

The initial, August 20, 2007, decision in Atlantic v. Howell, a pro se Arizona case, was vacated on September 27, 2007.

The RIAA lawyers had cited the initial decision to Judge Davis in Capitol v. Thomas.

The Thomas trial started on October 2, 2007.

On October 4th, there was oral argument in Capitol v. Thomas concerning the jury instructions to be given. Judge Davis wound up agreeing with the RIAA's argument, discarded the instruction he had originally decided to use, and accepted the improper instruction requested by Mr. Gabriel. And as everybody knows, a ludicrous jury verdict was the result.

So a period of seven (7) days had elapsed between the vacatur of the initial Howell decision and the oral argument and jury instruction.

I noted that day, in one blog post, that in two cases my office was handling -- Elektra v. Barker and Warner v. Cassin -- the RIAA's lawyers had "forgotten" to notify the respective judges that the Atlantic v. Howell decision which they had earlier brought to the attention of those judges had been vacated. I wondered, in another blog post, "if the RIAA lawyers ever brought it to the attention of Judge Davis that their favorite case, Atlantic v. Howell, was vacated."

Well I guess Judge Davis's new order answers my question.

They "forgot" to notify him as well.

Just as they "forgot" to notify him about the controlling contrary authority of the National Car Rental case.

Judge Davis seems to be under the misconception that it has been "since" vacated.... i.e. vacated AFTER the trial.

Wait 'til he finds out the truth.

-R.B.

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

In Warner v. Cassin, the White Plains, New York, case in which a motion to dismiss the complaint, which challenges the RIAA's "making available" theory, is still pending, defendant's lawyers have brought to Judge Robinson's attention the order issued by Judge Davis in Capitol v. Thomas.

May 15, 2008, letter of Ray Beckerman to Hon Stephen C. Robinson (re Capitol v. Thomas and Atlantic v. Howell)*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

In Capitol v. Thomas, the case in which the RIAA obtained a $222,000 jury award, District Judge Michael J. Davis has sua sponte issued an order stating that he believes he may have committed a "manifest error of law" by giving the jurors an incorrect jury instruction which accepted the RIAA's "making available" theory.

The judge stated that neither Ms. Thomas's lawyer, nor the RIAA's team of lawyers, had brought to the Court's attention the controlling opinion of the United States Court of Appeals for the Eighth Circuit, in National Car Rental System v. Computer Associates, which had held that there can be no infringement of the 17 USC 106(3) "distribution right" without actual dissemination of copies or phonorecords.

The judge also noted that the RIAA had relied upon the initial, August 20, 2007, decision in Atlantic v. Howell, which had been vacated on September 27, 2007, a week before the trial.

The judge has ordered the parties to file briefs, has invited amicus curiae briefs, and has scheduled oral argument for July 1st.

[Ed. note. If it is true that neither Mr. Toder nor Mr. Gabriel cited the National Car Rental case, then, in my professional opinion, Mr. Gabriel and those involved in briefing Capitol v. Thomas for the RIAA have breached their duty to bring to the Court's attention controlling contrary authorities. Certainly Mr. Gabriel was aware of the case, as it has been cited in numerous briefs which my office, and which other lawyers all across the country, have filed, in cases where the RIAA was seeking to foist its "making available" theory on the Court. Interestingly, the scheduled date of the oral argument, July 1st, is the same date that Mr. Gabriel starts his new job as a state court judge in Colorado, so that one of the other stormtroopers will have to face a very angry Judge Davis that day. -R.B.]

May 15, 2008, Order suggesting possible manifest error of law and calling for briefs and oral argument*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
Star Tribune
Ars Technica
Slashdot
ZDNet
The Patry Copyright Blog
Associated Press
TechDirt
Los Angeles Times
Heise Online (German)
Daily Tech
IT Toolbox
E-Commerce Times
C/Net
SiliconValley.com
Digital Media Wire

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

In the second "John Doe" case, targeting University of Maine students, Atlantic v. Does 1-14 the defendant's motion to quash and motion to strike the Linares declaration have now been fully submitted and are awaiting decision.

RIAA opposition memo*
Defendant's reply memo*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

In Atlantic v. Andersen, Tanya Andersen has been awarded attorneys fees against the record companies in the amount of $107,834.00.

This is the largest attorneys fee award against the RIAA to date, eclipsing the $68,685 award obtained in Capitol v. Foster.

Jon Newton of p2pnet.net, who has been covering the Tanya Andersen case from Day 1, writes:

RIAA nemisis Tanya Andersen has achieved another milestone victory.

She fought Vivendi Universal, EMI, Warner Music and Sony BMG’s RIAA to a standstill, forcing it to drop its spurious file sharing case against her, and now an Oregon court has awarded her close to $108,000 in fees and costs.

The amount, the highest ever, also signals what is in effect a default victory for other lawyers representing RIAA victims.

It means they now know they’ll be able to proceed with counterclaims bolstered by the knowledge they’ll be paid their work.

Complete article

May 14, 2008, Opinion and Order awarding defendant $107,834.00 in attorneys fees*

* Document published online at Internet Law & Regulation

Commentary & discussion:

The Oregonian
TechDirt
The Consumerist
Slyck
p2pnet.net (5/19/08)

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

In Capitol v. Weed, the plaintiffs have filed an amended Rule 7.1 corporate disclosure statement.

A very bizarre item is the claim that Capitol Records, Inc., has changed its name to Capitol Records, LLC., which, as the lawyers among you know, is impossible. Obviously some other transaction(s) have taken place, and the RIAA lawyers -- having attended law school -- knew that it is impossible, which means that they once again knew that they were signing a false document when they signed the amended corporate disclosure statement.

It would be interesting to know what kind of transaction actually took place at Capitol Records that the RIAA is trying to conceal from the defendants' lawyers. Certainly, if Capitol Records, Inc. has assigned its copyrights to a new entity named Capitol Records, LLC, we are entitled to know about it, and the plaintiffs would have to make a motion to amend the caption of the case, and provide discovery about the assignments of copyrights.

There are other changes involving (a) the parent company for Capitol, (b) Virgin, (c) SONY BMG, and (d) Arista.

Any thoughts?

-R.B.

Original Rule 7.1 Statement*
Amended Rule 7.1 Statement*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

In a May 12, 2008, report, the Vice President of EduCause has concluded that

counting DMCA notices is a completely
inappropriate measure of success in combating infringement and an
equally inappropriate basis for comparing the amount of infringement
taking place campus-to-campus or year-to-year.

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

One of our readers has brought to our attention an interesting article in the Chronicle of Higher Education, which contains a number of interesting points:

1. MediaSentry is a customer of Audible Magic software, the software in which Dr. Jacobson has an indirect financial interest, and uses Audible Magic software as part of its investigation. So when Dr. Jacobson testifies about how reliable MediaSentry is, he's talking about his customer, and when he testified that he doesn't know what their procedures are, he was lying.

2. The software process used by MediaSentry differs markedly from the way Richard Gabriel has sought to describe it in his representations to various courts.

3. Cara Duckworth, the RIAA's spokesperson, admits that

the RIAA can tell only when a song is being offered for users to illegally download; investigators have no way of knowing when someone else is actually downloading the song.

Commentary & discussion:

p2pnet.net
Digg
C/Net

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

In the case of Bridgeport Music v. Justin Combs Publishing, UMG and Universal -- two of the most frequent RIAA plaintiffs -- successfully argued that a jury's award of punitive damages in a copyright infringement case, which exceeded the plaintiff's actual damages by a ratio of more than 10:1, was unconstitutional as being violative of due process.

[Ed. note. The jury's award in Capitol v. Thomas exceeded the plaintiffs' actual damages by a ratio of around 23,000:1. But UMG and Universal think that that was just hunky dory. -R.B.]

Bridgeport v. Justin, Brief of UMG and Universal, pp 59-64*
Bridgeport v. Justin, Opinion of Court*

* Document published online at Internet Law & Regulation

Commentary & discussion:

TechDirt
Prexus
Ars Technica
Slashdot

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

We have just learned that Arista v. Greubel, the Texas case in which the Nettwerk Music company was reportedly funding the defendant's defense, was dismissed with prejudice pursuant to a joint stipulation of dismissal over a year ago.

[Ed. Note. The fact that it was dismissed with prejudice pursuant to a joint stipulation means it was settled. No doubt the settlement was secret, which is presumably why the defendant's lawyers never even told me about the dismissal, even though it's a matter of public record. -R.B.]

Stipulation of dismissal with prejudice*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property