Recording Industry vs The People: Feds Intervene in Fonovisa v. Alvarez in Texas, Try to Help RIAA

Tuesday, May 16, 2006

Feds Intervene in Fonovisa v. Alvarez in Texas, Try to Help RIAA

The United States Department of Justice has now tried to help the RIAA in a Texas case, Fonovisa v. Alvarez, filing a "Statement of Interest" opposing the defendant's motion to dismiss:

DOJ "Statement of Interest"*.

The Government conceded in its brief, however, that it has never prosecuted anyone just for "making available".

Unlike Elektra v. Barker, where the DOJ came into the case only in response to a brief by an amicus curiae, the Electronic Frontier Foundation, this time the DOJ just came into the case on its own. It thus appears that the RIAA and the DOJ are working together.

* Available online at Internet Law & Regulation

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

4 comments:

CodeWarrior said...: The DOJ is supposed to be an arm of the government. The government is the agency and servant of the people at large. I cannot recall a demand from the public that the agenda of the RIAA is their agenda, that they are in favor of persecutions of John Q. Public in simply sharing files or even allegedly sharing files, and in point of fact, where IS the public interest in pursuing the pecuniary interest of a de facto music monopoly?; May 16, 2006 at 6:55:00 PM EDT
CodeWarrior said...: After reviewing the Statement of Interest by the government, I note they try to quickly gloss over the fact the Copyright Act does not define "distribute". They also get involved in a cutesy pie way of trying to determine what is material, and act as if they objection over the matter of what is or is not "material", is nonsensical. I find it is THEIR argument which lacks seriousness.

At any rate, as a holder of registered copyrights myself (and yes, I have had my copyrights blatantly violated by international news agencies in the past), I know it is the REGISTERED copyright owners place to bring a civil action in matters of alleged infringement.

Certainly, MP3s are NOT true copies, nor are they truly "phonorecords". If a copy is an exact duplicate, we know that MP3s are lossy in nature, and can never be an exact copy of the song on an audio CD. It is like saying that a picture of the Mona Lisa on canvas, and a JPG on a hard drive of the Mona Lisa, are one and the same or that the JPG is a copy of the Mona Lisa. If a copy is technically an EXACT copy, in the same format, or even carrying all the data the original work had, then an MP3 is not now nor will it ever be, a "copy" in that sense, nor is it a phonorecord by an stretch of the imagination.

Is it "material"? NO. A digital MP3 is only a series of ones and zeros, electromagnetic fingerprints. Is it FIXED? I come down on the side of saying NO.; May 16, 2006 at 7:07:00 PM EDT
Izrath said...: You bring up a good point... Does taking a picture of a copyright or trademark infringe the IP owner's rights?

Makes me think of the www.fedexfurniture.com fiasco.; May 18, 2006 at 3:02:00 AM EDT
recordjackethistorian said...: Yes, I'd agree with code warrior, the boiler plate injunction is false right from the start because it claims that "exact" copies are being made. MP3's are by no means exact copies. Any audiophile would fall off his chair laughing at that statement. Even the MP3 spec does not claim exactness.

In his paper "MP3 AND AAC EXPLAINED ", Karlheinz Brandenburg of the Fraunhofer Institute for Integrated Circuits FhG-IIS A, Erlangen, Germany explains (in part) ...

"The technique to do this is called perceptual encoding and uses knowledge from psychoacoustics to reach the target of efficient but inaudible compression. Perceptual encoding is a lossy compression technique, i.e. the decoded file is not a bit-exact replica of the original digital audio data."

So exact copies are counterfeits, MP3's do not fit that description. An exact replica would mean that on close inspection, an ordinary person could not tell it from the original (the original being the CD, not parts of the CD). These MP3's are like parts of an automobile, but they aren't the automobile.

And yes, the word monopoly comes to mind. Remember that each and every artist is a kind of monopoly in itself. There is NO competition for Eminem recordings. You can only get them from one source.

David; May 18, 2006 at 4:13:00 PM EDT

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove