p2pnet Reports that 757 More Music File Sharing Suits Are Filed

It was reported by online publisher p2pnet that the RIAA has brought 757 new suits against people whose IP addresses have been associated with peer to peer music filesharing networks:

757 new RIAA victims
p2p news / p2pnet:- The Warner Music Group (US), EMI (Britain), Universal Music (France) and Sony BMG (Japan, Germany) record label cartel has sued another 757 American men, women and children under its bitter and entirely fruitless sue ‘em all product sales project.
This brings the total number of people singled out to 14,800. However, of these, only about 3,400 people have actually done a deal with one of the entertainment cartel blackmail centres set up to act as shills.
Among the new victims is a Princeton student, says The Daily Princetonian pointing out that 30 of the university's students have now been subpoenaed by the RIAA.
Columbia, Harvard, the Massachusetts Institute of Technology, the University of Pennsylvania, Boston University, Columbia University and the University of California, Berkeley, were among 17 other universities which also received subpoenas.

http://p2pnet.net/story/6429

"Jane Doe" Moves to Quash Subpoena in RIAA filesharing case Loud v. Does

On September 29th, in an RIAA p2p file sharing case brought against 74 "John Does" in federal court in Manhattan, Loud v. Does, where a subpoena has been served on the internet service provider (ISP) Cablevision, one of the "Jane Does" made a motion to quash the subpoena.

Her motion is based on the principle that a subpoena will not issue unless the plaintiff has made a showing of a prima facie case, and that the RIAA has no case since its complaint does not allege any specific acts, dates, or times of infringement, as required by law.

Her lawyers argued as follows:

Here, the Complaint alleges in conclusory fashion and upon information and belief that the Doe Defendants used “an online media distribution system” to download and distribute certain alleged copyrighted recordings to the public, and/or to make such recordings “available for distribution to others.” Complaint, ¶ 23 (Rogers Affidavit, Exhibit “B”). The Complaint makes no attempt to describe the specific acts of infringement or the dates and times on which they allegedly occurred. Indeed, the Complaint does not allege any actual instances of downloading or distribution. Nor does the Complaint make any attempt to set forth specific evidentiary facts upon which plaintiffs’ purported “information and belief” are based. Trans World Corp. v. Odyssey Partners, 561 F.Supp. 1315, 1323 (S.D.N.Y. 1983); Fountain v. Talley, 104 F.Supp.2d 1345, 1355 (M.D.Ala. 2000) (granting motion to dismiss because critical element of claim was pleaded upon information and belief without alleging facts showing the basis for such belief). The Complaint is therefore subject to dismissal. Marvullo, supra, 105 F.Supp.2d at 230; Brought to Life Music, Inc., supra, 2003 WL 296561 at *1; Plunket v. Doyle, 2001 WL 175252 at *4-6.
Although the Complaint refers to an Exhibit A purportedly listing copyrighted recordings that were allegedly infringed (Complaint, ¶¶ 21, 23), no such exhibit is attached to the Complaint in this case. In several similar cases brought by the recording industry against individuals, the complaints contained a list of songs that were purportedly made available for downloading by others through an internet account. Even if such a list had been attached in this case, the Complaint still would not state a claim for copyright infringement. It is well established that there is no liability for infringing upon the right of distribution unless copies of copyrighted works were actually disseminated to members of the public.

Complaint.

Jane Doe's Notice of Motion to Quash Subpoena
Affidavit of Morlan Ty Rogers in Support of Motion to Quash
Exhibit A
Exhibit B
Jane Doe's Memorandum of Law in Support of Motion to Quash

The lawyers for Jane Doe are Ray Beckerman, Morlan Ty Rogers, and Daniel A. Singer of Beldock Levine & Hoffman LLP

Another Motion to Dismiss in New P2P Fileshare Case in Brooklyn Federal Court, Atlantic v. Huggins

On September 28th, another motion to dismiss an RIAA complaint in a peer to peer file sharing case has been made, this time in Brooklyn federal court, in Atlantic v. Huggins.

Under the court rules, a letter describing the motion is required, which will be followed by a court conference, prior to the service of formal motion papers.

The defendant's lawyers argued as follows:

The Federal Rules of Civil Procedure require that a complaint give “fair notice of the claim asserted [to allow the defendant] to answer and prepare for trial.” Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995). In copyright infringement cases, Rule 8(a)(2) “require[s] a plaintiff to plead with specificity the acts by which a defendant has committed copyright infringement.... [The complaint] must set out the ‘particular infringing acts ... with some specificity. Broad, sweeping allegations of infringement do not comply with Rule 8.” Marvullo v. Gruner & Jahr, 105 F.Supp.2d 225, 230 (S.D.N.Y. 2000) (italics added).
In copyright infringement cases, a complaint must therefore allege, inter alia, “by what acts during what time the defendant infringed the copyright.” Marvullo, supra, 105 F.Supp.2d at 230 (italics added); Brought to Life Music, Inc. v. MCA Records, Inc., 2003 WL 296561 at *1 (S.D.N.Y. Feb. 11, 2003) (granting Rule 12(b)(6) motion where “[p]laintiff ha[d] not attempted to describe ‘by what acts and during what time’ [the defendant] infringed the copyright”). See also Plunket v. Doyle, 2001 WL 175252 at *4-6 (S.D.N.Y. Feb. 22, 2001) (dismissing copyright infringement claim under Rule 8 because it “fails to describe the time period during which infringing acts occurred).
Here, the Complaint alleges in conclusory fashion and upon information and belief that defendant used “an online media distribution system” to download and distribute certain alleged copyrighted recordings to the public, and/or to make such recordings “available for distribution to others.” Complaint, ¶ 12. The Complaint makes no attempt to describe the specific acts of infringement or the dates and times on which they allegedly occurred. Indeed, the Complaint does not allege any actual instances of downloading or distribution.
Moreover, the allegation that defendant merely made these recordings available for distribution to others fails to state a copyright claim. It is well established that there is no liability for infringing upon the right of distribution unless copies of copyrighted works were actually disseminated to members of the public. Arista Records, Inc. v. MP3Board, Inc., 00 Civ. 4660, 2002 WL 1997918 at *4 (S.D.N.Y. Aug. 29, 2002) (“[i]nfringement of the distribution right requires an actual dissemination of ... copies”) (emphasis added); National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426, 434 (8th Cir. 1993) (“[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords”) (emphasis added) (citing 2 Nimmer on Copyright § 8.11[A], at 8-124); In re Napster, Inc., 377 F.Supp.2d 796, 802 (N.D.Cal. May 31, 2005) (copyright owner must prove that the defendant “actually disseminated” copies of the copyrighted work to members of the public).
Thus, it is fundamental that the mere listing of copyrighted works in an index of files available for downloading by others does not violate the copyright owner’s right of distribution. In re Napster, Inc., supra, 377 F.Supp.2d at 802, 805 (granting summary judgment on this issue); Arista Records, supra, 00 Civ. 4660, 2002 WL 1997918 at *4 (posting on MP3Board website of links leading to infringing audio files does not establish unlawful dissemination of copies of such files to the public). See also Obolensky v. G.P. Putnam’s Sons, 628 F.Supp. 1552, 1555-56 (S.D.N.Y.) (publisher did not infringe on copyright owner’s right of distribution of copyrighted book by listing the book in a trade publication as belonging to publisher where publisher neither copied the book nor sold any copies of the book; “there is no violation of the right to vend copyrighted works ... where the defendant offers to sell copyrighted materials but does not consummate a sale”), aff’d, 795 F.2d 1005 (2d Cir. 1986); 2 Paul Goldstein, Copyright § 5.5.1, at 5:102 to 5-102-1 (2d ed. 2000 & Supp. 2005) (“an actual transfer must take place; a mere offer for sale will not violate the right”); SBK Catalogue Partnership v. Orion Pictures Corp., 723 F.Supp. 1053, 1064 (D.N.J. 1989) (merely “authorizing” a third party to distribute copyrighted works without proof that the third party actually did so does not constitute copyright infringement); CACI Intern., Inc. v. Pentagen Technologies Intern., 93 Civ. 1631, 1994 WL 1752376 at *4 (E.D.Va. Jun. 16, 1994) (marketing of software package without actually distributing it does not constitute copyright infringement).

September 28th Letter to Judge Trager.

Complaint.

Defendant is represented by Ray Beckerman, Morlan Ty Rogers, and Daniel A. Singer of Beldock Levine & Hoffman LLP

eDonkey Folds to RIAA Demands, Cites Legal Costs --Digital Music News

Digital Music News reports:

eDonkey Folds to RIAA Demands, Cites Legal Costs

Leading peer-to-peer application eDonkey will soon comply with RIAA demands.
In Senate testimony Wednesday morning, company CEO Sam Yagan said that his
company would be "throwing in the towel" following the receipt of an RIAA
cease-and-desist notice. "I'd like to make it clear to the Committee that we
have replied to the RIAA's cease-and-desist letter," Yagan said to the US
Senate Committee on the Judiciary, in a hearing dedicated to post-Grokster
issues. "I have personally committed to [RIAA president Cary] Sherman, which
I reiterate today, that we are in the process of complying with their
request." The eDonkey site is currently live, and specifics of the plan
going forward were not revealed. The company felt that it could win a legal
battle against the RIAA, but could not afford the legal costs involved.....

Full text of article.

In Atlantic v. Huggins Brooklyn Federal Court Allows Kansas City Missouri Lawyers to Appear in Case

In an RIAA case in Brooklyn federal court, Atlantic v. Huggins, the judge granted the motion of Kansas City, Missouri, attorneys Shook Hardy & Bacon to appear in the case.

Judge's Decision Granting Pro Hac Vice Motion.
(Alternate link)

Interesting Article about "Settlement Support Center, LLC"

Interesting article in p2pnet.net about "Settlement Support Center, LLC", the Seattle company that specializes in threatening people in order to get them to pay money:
http://p2pnet.net/story/6337

Atlantic v. Huggins -- Shook Hardy Bacon Moves for Admission Pro haec vice -- Beldock Levine Hoffman Opposes

Normally, a lawyer must be admitted to practice in a court before he can appear in a litigation.

Occasionally, an out-of-town lawyer will move to be admitted 'pro haec vice' -- i.e., for one particular case only.

It is normally routine to consent to a motion to be admitted pro haec vice. In Elektra v. Santangelo, Timothy Congrove of Shook Hardy & Bacon made such a motion, and Ms. Santangelo's lawyers -- Beldock Levine & Hoffman did not oppose the motion.

In another case, however, this one pending in Brooklyn federal court -- Atlantic Records v. Huggins -- Beldock Levine & Hoffman has opposed Shook Hardy's motion for one of its lawyers to be admitted pro haec vice, on the ground that Shook Hardy had been interfering with the settlement process and acting in bad faith.

Miller declaration,
Notice of motion, and
Proposed order.

Opposing papers:
Affidavit in opposition.

Exhibits to the opposition papers:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H

Additionally, Beldock Levine & Hoffman has asked the Magistrate Judge in the case, who has scheduled a settlement conference for October 7th, to require the RIAA to produce a corporate officer of the plaintiffs, with settlement authority, to appear at the settlement conference. http://info.riaalawsuits.us/atlantic_huggins/050921lettertomagislevy.pdf

Suits Against Settlement Support Center

Individuals interested in suing the "Settlement Support" Center (formerly "Investigations" center), which is located in Seattle, Washington, may wish to contact the firm of Lybeck Murphy, LLP, which is located approximately 10 miles away from the "SS":

Lybeck, Lory R.
Lybeck Murphy, LLP
500 Island Corporate Center
7525 SE 24 Street
Mercer Island, WA 98040-2336
(206) 230-4255

"Suing Your Customers: A Winning Business Strategy?" --Strategic Managment @ Wharton

Interesting 2003 article I just came across, by Prof. G. Richard Shell published at StrategicManagement@Wharton

Suing Your Customers: A Winning Business Strategy?
By Prof. G. Richard Shell

The recording industry has a pricing problem. People do not want to pay $15-20 for a compact disc when they can download the same music for free over the Internet. The industry’s solution appears as novel as the technology that is giving it such headaches: launch hundreds of lawsuits against otherwise law-abiding consumers who download music. But, as Wharton legal studies professor G. Richard Shell writes below, this same tactic was tried 100 years ago against Henry Ford. It didn’t work then, and it won’t work today. Shell is author of a forthcoming book on legal and business strategy.

The recording industry has a pricing problem. People do not want to pay $15-20 for a compact disc when they can download the same music for free over the Internet. The industry’s solution appears as novel as the technology that is giving it such headaches: launch hundreds of lawsuits against otherwise law-abiding consumers who download music.

After all, the music industry has invested billions of dollars in its product and thought it had iron-clad intellectual property protection for these investments – copyrights in recorded songs issued by the United States government. But having a strong legal claim on the merits is only one factor in legal strategy success. Indeed, this factor is often the least important one from a business point of view. Other key strategic considerations include the public legitimacy of an industry’s legal attack (i.e. how the move will play in the court of public opinion), the vulnerability of an industry’s strategic position in its market, the resources it has available to sustain a legal war, and the access an industry has to important legal decision makers such as regulators and legislators who can make new rules in the industry’s favor.

The recording industry balanced these factors well in its initial legal strategy – suing online distribution companies such as Napster. Napster was a direct threat with no legitimacy of its own. Its only appeal was whimsy: Average citizens thought its creator, Shawn Fanning, had a neat, new technology. But they also recognized that Fanning was selling the key to somebody else’s candy store. Nobody formed a “Free Fanning” committee to bail him out of legal trouble.

The recording industry, however, has gone one step too far with its latest legal move. Suing your customers is not a winning business strategy. Industries have a completely different strategic relationship with customers than they do with rivals. And this sort of strategy does not play well in the court of public opinion.

Complete Text of Article

p2pnet Reports on the "We're Not Taking Anymore" Club

On line publisher p2pnet.net has written about some of the folks who have been sued by the RIAA and are fighting back, dubbing them the "We're Not Taking Anymore Club":

"The "We're Not Taking Anymore" Club

"p2pnet Special:- An unusual, extremely expensive, international online club is starting to form.

"Its first member was Patricia Santangelo, a single New York mother of five.

Next came Dawnell Leadbetter, another single mother, this time from the Seattle area. If you’re a regular p2pnet reader, you’ll recognize both of the above names.

"The third member was someone you haven't met before: Tanya Andersen (right), a single mother who's living in Oregon and who's seriously disabled with a painful medical condition. She and her eight-year-old daughter get by on social security payments.

"By now, you'll have probably guessed the club members are all women being brutally victimized by EMI, Universal, Warner and Sony BMG, the huge, multi-billion-dollar record label cartel that's using its immense financial and political weight and deep, dark connections to law enforcement agencies in a bizarre marketing scheme.

"Instead of wooing customers, it's suing them and so far, it's clocked up close to 14,000 people.

"But the significance of the three women isn't that they're among the unfortunate victims.

"Rather, they stand out because they're standing up, defying the Mafia-like labels and their teams of hired legal thugs who work through 'Settlement Centers' which aim to terrorize people into paying 'fees' which usually start out at $7,500 to be 'negotiated' down to around $3,500."

Complete article.

Calling All Techies!!! If You Want to Help the Victims of the RIAA Lawsuits, Your Help Will be Needed

Calling all Techies!!!

If you are concerned about the RIAA's onslaught against hapless victims, there will be plenty of opportunities for you to help.

Take a good look at this computer protective order in Motown v. Nelson:

http://info.riaalawsuits.us/motown_nelson/motown_nelson_computer_protective_order1.pdf

These are some of the types of computer-related issues that will come up. As you know, there will be plenty of other issues that might arise, as where a lay person's computer has been taken over by an outside source.

As you know, the RIAA has unlimited resources it is willing to throw into these litigations, but for ordinary folks sued in this morass of litigation, hiring computer forensic experts will be very difficult.

I challenge the tech community -- which seems to be very aware of the peril posed by these lawsuits -- to join the network of knowledgeable and dependable people who are willing to help the defendants' lawyers in these cases, and to do it on a pro bono or reduced fee basis, through the Electronic Frontier Foundation :

EFF Cooperating Techs.

This is a mailing list run by the EFF designed to hook up techies with lawyers on a variety of cases.

http://www.eff.org/deeplinks/archives/003931.php

https://falcon.eff.org/mailman/listinfo/effcooperatingtechs

-R.B.

Motown v. Nelson: RIAA Moves to Strike Statement of Teenager Who Admits Listening to Kazaa songs

In Motown v. Nelson, in Michigan federal court, the RIAA has moved to strike the deposition testimony of a teenager who had admitted listening to songs on Kazaa while at defendant's house.

In Mowtown Record Company v. James and Angela Nelson, U.S. District Court Eastern District of Michigan Southern Division, Case No. 04-73646; Honorable: Bernard Friedman, the RIAA sued Mr. Nelson, who had no experience or knowledge of computers. Mr. Nelson's wife operates an in home day care center and has several teenage employees.

During the deposition of one of the employees, the teenager testified that although she listened to songs on Kazaa at the Nelsons' house, she did so with Mr. and Mrs. Nelson's knowledge and approval. Based on the teenager's testimony, the RIAA added Mrs. Nelson as a defendant.

During a second series of depositions, the teenage employee recanted her prior statement and said the Nelsons had nothing to do with Kazaa and did not know where the songs were coming from, and that her previous testimony was influenced by the fact that that she was scared and thought that she was going to be in trouble herself unless she blamed them. "Not surprisingly," reports John Hermann, Mr. Nelson's attorney, "the RIAA has tried to threaten the child in order to induce her to change her testimony, even going so far as to hire a private investigator to try to procure a false affidavit indicating that I was active in suborning perjury. Unless they withdraw their complaint against Mrs. Nelson, I will be asking the Court to award sanctions under Rule 11 of the Federal Rules of Civil Procedure."

It appears that, instead of withdrawing their complaint against Mrs. Nelson, the RIAA plaintiffs have instead chosen to make a motion to strike the teenager's testimony.

Elektra v. Harless: RIAA Ordered to Comply with Discovery; Held Precluded for Failure to Comply with Discovery

In Elektra v. Harless, a Michigan case, the RIAA was ordered by a federal judge to comply with discovery, and it was held by the judge that the RIAA would be precluding from producing evidence on the subjects on which it had failed to comply with discovery.

The case is Elecktra Entertainment v. John Harless U.S. District Court Eastern District of Michigan Southern Division Case No. 04-cv-74502;Honorable: Bernard Friedman. The RIAA sued Mr. Harless, who had no experience or knowledge of computers. It his possible that his teenage children ages 16 and 14 may have had file sharing accounts. Although no discovery has been taken, the attorney for Mr. Harless, John Hermann of Berkley, Michigan, tried to obtain information from the RIAA as to the basis of its claims.

They resisted each request. Mr. Hermann surmises that the reason for their recalcitrance is that they have no information other than an IP address and account number.

On June 24, 2005, Hon. Donald A. Scheer, the United States Magistrate Judge for the Court, entered an order compelling the RIAA to produce a Media Sentry representative for a deposition as to the pre-suit investigative procedures. http://www.digitalmusicnews.com/legal/elektra_harless-discovorder1.pdf.

To date, however, they have "dragged their heels and have not complied", reports Mr. Hermann.

Priority Records v. Chan: RIAA Case Against Mother Dismissed; No Attorneys Fees; Guardian Ad Litem must be appointed for 13 yr old defendant

Michigan court rules:

Case dismissed "with prejudice" against mother;
No attorneys fees;
Guradian ad litem must be appointed for 13 year old defendant.

In an actively contested case in federal court in Michigan, Priority Records LLC et al v. Candy Chan, the RIAA was forced to withdraw its case against a mother. Priority Records v. Candy Chan, U.S. District Court Eastern District of Michigan Southern Division
Case No. 04-cv-73645-DT Honorable: Lawrence Zatkoff.

The RIAA sued the defendant Candy Chan, who had no experience or knowledge of computers. It was possible that her 13 year old daughter may have had a file sharing account.

The RIAA continued to argue that Ms. Chan was indirectly liable for providing a computer to her teenage daughter. After taking Ms. Chan's deposition, the RIAA moved to add the 13 year old child as a defendant.

Ms. Chan's attorney, John Hermann of Berkley, Michigan, objected, arguing that the daughter was a minor and that the Court would have to appoint a guardian ad litem to protect the interests of the child, before for the child before they could proceed.

In the meantime, Mr. Hermann indicated that he would make a motion for summary
judgment on behalf of Ms. Chan.

The RIAA then immediately moved to withdraw its own case against the mother.

The Judge granted the motion.

A copy of Judge Zatkoff's opinion, order, and judgment is posted at http://www.p2pnet.net/stuff/chan1.pdf

Judge Zatkoff declined to award Ms. Chan attorneys fees, holding that in his opinion plaintiffs' lawyers had "taken reasonable steps to try to prosecute this case and litigate against the proper defendants" and that "[t]o the extent Candy Chan has incurred legal fees in this action, such fees are primarily the result of tactics designed to imped the ability of Plaintiffs to prosecute this action in an efficient manner" and because "Candy Chan has not agreed to fairly simple mechanisms which would accomplish the same objectives that the filing of motions has accomplished." http://www.p2pnet.net/stuff/chan1.pdf

The Court dismissed the case "with prejudice" (which means that it could never again be reinstituted against the defendant).

Subsequently, the RIAA plaintiffs made another motion. They asked the Judge to amend the judgment to allow them to continue the lawsuit against the 13 year old daughter through a guardian ad litem.

The Court denied the motion. http://www.lifeofalawyer.com/riaa/chan_order_2.pdf.

Judge Zatkoff held that a guardian ad litem would have to be appointed for the 13 year old daughter, regardless of whether the old action was allowed to proceed, or a new action was commenced, and that the only additional work was his having to spend the time to review and decide plaintiff's motion. http://www.lifeofalawyer.com/riaa/chan_order_2.pdf.

Ms. Chan was represented by:

John Hermann
Attorney at Law
2684 West Eleven Mile Road
Berkley, MI 48072
248-591-9291
248-591-2304 fax
JTHermanos@Earthlink.net

Contested Case in Seattle, Washington :Interscope v. Leadbetter

Another RIAA defendant is fighting back.

In federal court, in Seattle, Washington, the attorneys for Dawnell Leadbetter have filed an answer refuting the allegations of the RIAA's boilerplate complaint.

A copy of the answer is posted at

http://riaalawsuits.shannera.de/interscope_leadbetter/interscope_leadbetter_answer.pdf

Ms. Leadbetter is represented by Lory L. Lybeck of Lybeck Murphy, LLP, a law firm based in Mercer Island, Washington.

About the RIAA's Request for a 'Second Bite at the Apple'

Reprinted from Digital Music News:

***************************************************************************

RIAA Asks for A Second Bite at the Apple in Elektra v. Santangelo

Asks for a second oral argument and a chance to serve a surreply

This is my first blog post on Digital Music News, and I am very excited to be a part of this dynamic pioneering group. Although I'm a lawyer by profession, I'll do my best not to be boring.

As regular readers of Digital Music News already know, my firm is representing Patricia Santangelo in the Elektra v. Santangelo case.

Ms. Santangelo appeared in court in May by herself, before hiring attorneys. After we were retained, we made a motion to dismiss the complaint for failure to allege any specific acts, dates, and times of unlawful copying, which is required in a copyright case. We made our motion, the RIAA served its opposition papers, and we served our reply papers, which is the normal sequence. (Copies of the May transcript, and of the motion, opposition, and reply papers, are catalogued at my blog Recording Industry vs the People)

On August 5th, the judge asked for and heard oral argument on the issues raised by the dismissal motion. I argued for the defendant. Timothy Congrove, of Shook Hardy & Bacon, a Kansas City, Missouri, firm best known for representing big tobacco companies in suits brought by lung cancer victims, argued the case for the RIAA. He literally 'phoned it in' -- i.e. he appeared by telephone.

The motion was fully briefed, and the last papers submitted to the court, on August 15th.

On August 22nd, in a very unusual move, the plaintiff's lawyers asked the judge for a second oral argument and permission to serve a surreply.

The surreply request is unusual because the normal rule is that the party bearing the affirmative burden of persuasion (in this instance Ms. Santangelo) gets to have the last word. The party making the motion bears the burden of persuading the court, and serves its motion papers. The opposing party serves its opposition papers. And then the movant gets the last word -- its reply papers.

I would say that asking for a second oral argument is unusual, because (a) in almost 31 years of working in litigation I've never heard of anyone doing it, and (b) the very asking for it is an admission that the first oral argument was lost.

One can only guess as to why plaintiff's lawyers are doing it. Apparently something happened after August 15th to convince the plaintiff's lawyers that (a) they are losing, and/or (b) the case is more important than they initially thought it was. Or perhaps they are doing it because they are hired guns and their client just ordered them to do it.

What do you think?

Reprinted from Digital Music News

RIAA Lawyers Request Opportunity To Put in More Arguments in Santangelo case

In an unusual move, the RIAA's lawyers have asked the Judge for permission to have a second oral argument of the motion, and to submit an unusual surreply to the defendant's reply papers.

Letter of plaintiff's counsel requesting second oral argument and permission to submit additional papers

A copy of the letter making the request was sent to Ty Rogers, at the firm of Ms. Santangelo's lawyers, even though Mr. Rogers was on vacation until September 6th.

Report on Second Conference in Elektra v. Santangelo, taking place on August 5th

The second conference in Elektra v. Santangelo took place on August 5th, in federal court in White Plains, New York.

I appeared for Ms. Santangelo.

The RIAA plaintiffs were represented by Maryann Penney of the Cowan Liebowitz firm in New York City and by Timothy Congrove, a partner in Shook Hardy & Bacon, in Kansas City, Missouri.

Mr. Congrove spoke for the plaintiffs. He participated by telephone, rather than in person.

The judge concentrated on the dismissal motion and asked Mr. Congrove to justify his position. Mr. Congrove said he would be citing cases in his brief on August 8th, but the judge wanted him to cite his cases then and there.

The first case he cited was a case we had ourselves cited as a reason for dismissing the complaint.

He made his arguments, and I made mine, and the judge had many piercing questions.

She indicated that she would decide the motion after all the papers had been submitted.

She did not schedule any further court dates at that time.

I am attempting to obtain a transcript of the proceedings, and when I do will post it on this site.

The final motion papers were submitted on August 15th.

Ray Beckerman

Australian Judge Holds, After a Trial, That Kazaa Must Furnish Filtering Technology to Exclude Unlicensed Copyrighted Works

On September 5th it was held by Justice Wilcox the Federal Court of Australia, in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd,[2005] FCA 1242, after a trial, that, under Australian law, Kazaa must furnish its users filtering technology that will exclude unlicensed copyrighted works.

RIAA Spokesman Distorts MGM v Grokster

An RIAA spokesman has been making false statements to the press about the MGM v. Grokster case. He has been saying that the Supreme Court held that file sharing is "garden variety theft".

In fact the court's decision says nothing of the kind.

The only reference to "garden variety theft" is in the concurring opinion of Justice Breyer, in which Justice Breyer opined that the Court should not deviate from Sony v. Betamax:

"In any event, the evidence now available does not, in my view, make out a sufficiently strong case for change. To say this is not to doubt the basic need to protect copyrighted material from infringement. The Constitution itself stresses the vital role that copyright plays in advancing the useful Arts. Art. I, §8, cl. 8. No one disputes that reward to the author or artist serves to induce release to the public of the products of his creative genius. United States v. Paramount Pictures, Inc., 334 U. S. 131, 158 (1948). And deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft. See, e.g., 18 U. S. C. §2319 (criminal copyright infringement); §1961(1)(B) (copyright infringement can be a predicate act under the Racketeer Influenced and Corrupt Organizations Act); §1956(c)(7)(D) (money laundering includes the receipt of proceeds from copyright infringement). But these highly general principles cannot by themselves tell us how to balance the interests at issue in Sony or whether Sony's standard needs modification. And at certain key points, information is lacking." [italics supplied]

He nowhere said that peer to peer file sharing was a "garden variety theft".

The entire decision is posted at http://www.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf

The actual quote is at page 50 of the 55-page pdf file.

More Distortion by RIAA

It was reported by Digital Music News that RIAA president Cary Sherman has justified bringing 754 new suits on the ground that the Supreme Court's Grokster ruling signified that "the individuals who download songs without permission can be held accountable". http://digitalmusicnews.com/#090105riaa.

This is false and misleading in two respects.

1. The Grokster ruling had nothing to do with liability of individuals sharing files for personal use.

2. The RIAA is commencing lawsuits against people without any knowledge of whether they are or are not "individuals who download songs without permission".

More News Coverage of Elektra v. Santangelo

More news and features coverage on Elektra v. Santangelo:

RIAA: Beginning of the End (p2pnet.net) (9/1/05)

Barristers Buzzing on Upcoming RIAA Legal Challenge (Digital Music News) (8/31/05)

Mother of 5 Takes on Big Music (p2pnet.net)(8/28/05)

RIAA Follies (Stereophile) (8/22/05)

Litigation Documents in Elektra v. Santangelo

The following are the litigation documents, in *.pdf format, for the defendant's motion to dismiss complaint in Elektra v. Santangelo:

Notice of Motion to dismiss complaint
(Alternate link)
Memorandum of Law in support of motion to dismiss complaint
(Alternate link)
Affidavit of Morlan Ty Rogers in support of motion to dismiss complaint
Exhibit A (Complaint)
Exhibit A of Complaint
Exhibit B of Complaint, first part
Exhibit B of Complaint, cont'd
Exhibit B of Complaint, cont'd)

Plaintiff's Memorandum of Law in opposition to motion to dismiss complaint

Reply Memorandum of Law in support of motion to dismiss complaint
Revised Reply Memorandum of Law in support of motion to dismiss complaint

Letter of plaintiff's counsel requesting second oral argument and permission to submit additional papers

The motion has been fully briefed and argued, and the parties are awaiting the Court's decision.

Transcript of May 6, 2005, court conference in Elektra v. Santangelo

The following is the transcript of the May 6th court conference in Elektra v. Santangelo.

http://www.geocities.com/codewarrior_wins/transcript050506.txt

RIAA Commences 754 New Lawsuits

Digital Music News reports that the RIAA has commenced 754 new lawsuits:

"RIAA Issues New Round of Lawsuits, 754 In Latest Sweep

"Like clockwork, the RIAA has issued another round of lawsuits against individual file-swappers. The trade organization will now seek the identities of 754 file uploaders from various ISPs through its "John Doe" court clarification process. The RIAA named P2P applications Kazaa, Grokster, and LimeWire as part of the sweep...."

For complete article go to:

http://digitalmusicnews.com/#090105riaa

See also Story at p2pnet.net