In UMG v. Lindor, Judge David G. Trager has adopted the Report and Recommendations of Magistrate Judge Robert M. Levy in their entirety, rejecting the two changes in language that had been suggested by Ms. Lindor's attorneys, but held that plaintiffs will have the burden of proving at trial, by a preponderance of the evidence, that defendant actually shared copyrighted files:
Defendant ... objects to the passage "...that defendant actually shared sound files belonging to plaintiffs" because "the mere presence of a shared files folder on an individual'sDecember 22, 2006, Order and Decision Adopting Magistrate Judge's Recommendations and Report concerning Defendant's preclusion motion*
computer would not satisfy the requirements of 17 USC 106(3)." Objection to Report and Recommendation, at 1-2. The report and recommendation does not comment on whether or not the mere presence of a shared files folder satisfies 17 USC 106(3). Instead, it makes clear that plaintiffs will have the burden of proving actual sharing. Report and Recommendation, at 5 ("At trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff’s copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs.") (emphasis added).(italics supplied)
Copies of the Magistrate's report, and Ms. Lindor's two objections to its wording, are as follows:
December 12, 2006, Report and Recommendation Denying in Part and Granting in Part Defendant's Motion to Preclude*
Defendant's Objection to Report and Recommendation*
* Document published online at Internet Law & Regulation
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