My report on the p2p litigation summit

I was privileged to attend the "First Annual p2p Litigation Summit", held in Chicago, Illinois, on Thursday, November 3rd, at Northwestern University School of Law. The event was co-sponsored by the Electronic Frontier Foundation ("EFF"), and Privacy Solutions PC. The event was organized by Corynne McSherry of EFF and Katherine Mudd of Privacy Solutions. The hosts were Cindy Cohn, Legal Director of the EFF, Allison Navone of EFF, and Charles Mudd and Katherine Mudd of Privacy Solutions.

RIAA representatives were invited to appear as speakers, but declined the invitation.

The audience seemed to be made up of people primarily from the digital copyright legal community and the online business community.

It was a great learning experience for me, and it was great to meet people who have been fighting the RIAA longer than I have. I learned for the first time that BMG v. Gonzales, which is the only contested case the RIAA has won, was appealed, and that the appeal was argued a few days ago in the 7th Circuit.

The ISP community was represented by Randall Cadenhead, corporate counsel of Cox Communications, based in Atlanta, Georgia. Mr. Cadenhead spoke informatively about the human impact the RIAA lawsuits have had on the people sued, and about varyious technical issues, including the unreliability of dynamic IP addresses. He was joined by Charles Mudd, who spoke about the RIAA cases he has been handling in Chicago.

One of the RIAA defendants himself spoke, telling his story of what it was like to be caught up in the web of litigation when he'd done nothing illegal.

Alex Cameron, an instructor at the University of Ottawa law school, spoke on the Canadian Case, BMG v. Doe, in which Canada's Federal Court of Appeal held the RIAA's Canadian counterpart to much higher standards, before bringing a lawsuit and before obtaining "John Doe" information, than the United States judges have done.

Prof. Henry Perritt, Jr., and student Derek Slater, gave an informative presentation on possible future alternative business models for the distribution of online music.

I was on a panel discussing litigation activities. The first speaker was Paul Levy of Public Citizen, a public interest law firm. Aden Fine of the American Civil Liberties Union followed. Paul and Aden spoke about the background of cases which dealt with procedural due process issues, such as the battle to knock out Digital Millenium Copyright Act subpoenas and instead require John Doe litigations, the battle to require proper notices on the part of ISP's, and the battle to ensure that the named defendants are sued in the districts in which they reside. I gave a 'litigation roundup' on the current wave of RIAA v. End User litigations in which the end users are now fighting back.

Another panel composed of John Hermann of Berkley, Michigan, and Charles Mudd of Chicago, dealt with the impossibility of negotiating settlements, since the Shook Hardy & Bacon law firm has simply refused to negotiate, has insisted on 'take it or leave it' dollar amounts, and has insisted upon an extremely onerous one-sided form of agreement which can hardly be termed a 'settlement' at all. John Hermann is the lawyer who in Detroit federal court has been battling with the RIAA in Priority Records v. Candy Chan, Elektra v. Harless, and Motown v. Nelson, and whose motion for summary judgment in the Candy Chan case prompted the RIAA to sue 14-year-old Brittany Chan. Charles Mudd has been representing a number of RIAA defendants in a settlement context.

There was the type of sharp, incisive questioning, and give and take, that takes place when you bring together in one room a bunch of people who know what they're talking about, and have had a lot of experience with the same subject.

It was the sense of the room that we would all hope that there would be no need for a second annual p2p litigation summit, but that with the irresponsible attitudes of the RIAA and of its law firm, we expected there probably would be.

While I personally expect the RIAA to lose a bunch of cases shortly -- both the early stage cases which my firm is handling in the New York City area -- and the late stage case, which is going to a jury trial in 3 weeks in Detroit, Michigan, it seems to be that the RIAA will appeal every defeat, thus dragging these cases on into the future.

When the judges start hitting the RIAA with attorneys fees, and their attorneys with 'sanctions', then this wave of frivolous litigation will stop, but probably not until then.

That's where I and my associates come in. We've got to get us some victories, and get some fee awards, which will bring the fun into it.

But for now it was a treat to be among people of such high moral calibre and such outstanding legal talent; it was one of those days where I'm proud to be a lawyer, unlike the days where I spend much of my time communicating with Shook Hardy & Bacon.