Amicus Brief Filed in Elektra v. Barker by Computer & Communications Industry Assoc. & US Internet Industry Assoc.

A new amicus curiae brief has been filed in Elektra v. Barker, pending before Judge Karas in the United Stated States District Court, Southern District of New York, by the Computer & Communications Industry Association and the US Internet Industry Association.

In their brief these computer and internet associations argue that

-the RIAA's brief offers a "misguided analysis of the section 106(3) distribution right";

-the RIAA is seeking to expand the concept of "distribution" to incorporate an overbroad concept of "making available";

-the RIAA's "[e]fforts ... to rewrite copyright law should not be countenanced...."; and

-the RIAA has overlooked the fact that in order for there to be a distribution there have to be "copies" or "phonorecords" and they have to be distributed to the public by sale, or other transfer of ownership, or by renting, leasing, or lending.

They pointed out that

Plaintiffs' proposed expansion of the distribution right would sweep into the reach of copyright law many activities not now covered by copyright law . Under such an elastic interpretation and ill-d efined standard, the Internet connections and equipment that members of Amici furnish may render them vulnerable to accusations that they "make available" a variety of
content, including copyrighted materials, to users . Such activities, e.g., providing Internet connections, however, do not constitute distributions within the scope of section 106(3) . If a vague conception of "making available" were substituted for the clear statutory provision of section 106(3), the boundaries of the right would become indeterminate and unpredictable, creating chilling effects on members of Amici and virtually every other participant on the Internet. For example, companies routinely include in their web pages hyperlinks that enable persons to navigate easily to other sites throughout the web by use of browser software. Indeed,
the web is a collection of hyperlinks . Even though the use of hyperlinks makes
content located elsewhere available to a web user, it does not constitute a distribution of that content under section 106(3) [See brief, pp. 10-11]

Amicus Curiae Brief of Computer & Communications Industry Association and US Internet Industry Association in Support of Defendant's Motion to Dismiss Complaint (Published 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

Nettwerk Music Group Takes on the RIAA

NEW YORK, NY -- (MARKET WIRE) -- 01/26/2006 -- Canadian-based artist label and management company Nettwerk Music Group has joined the fight against the RIAA on behalf of consumers who wish to download music.

In August 2005, the Recording Industry Association of America (RIAA) filed a complaint against David Greubel for alleged file sharing. Greubel is accused of having 600 suspected music files on the family computer. The RIAA is targeting nine specific songs, including "Sk8er Boi" by Arista artist Avril Lavigne, a Nettwerk management client. The RIAA has demanded Greubel pay a $9,000 stipulated judgment as a penalty, though it will accept $4,500 should Greubel pay the amount within a specific period of time.

"Suing music fans is not the solution, it's the problem," stated Terry McBride, C.E.O of Nettwerk Music Group.

Nettwerk became involved in the battle against the RIAA after 15-year-old Elisa Greubel contacted MC Lars, also a Nettwerk management client, to say that she identified with "Download This Song," a track from the artist's latest release. In an e-mail to the artist's web-site, she wrote, "My family is one of many seemingly randomly chosen families to be sued by the RIAA. No fun. You can't fight them, trying could possibly cost us millions. The line 'they sue little kids downloading hit songs,' basically sums a lot of the whole thing up. I'm not saying it is right to download but the whole lawsuit business is a tad bit outrageous."

Chicago-based Mudd Law Offices will take on the legal battle. Charles Lee Mudd Jr. has represented individuals subpoenaed and sued by the RIAA since the suits began in late summer 2003.

Mudd stated, "In an effort to combat the continued injustice of the RIAA's consumer lawsuits, attorneys, musicians and artist managers have joined forces to defend the interests of David Greubel and his family in the United States District Court, Northern District of Texas. Together, these parties hope to demonstrate the injustice and impropriety of the RIAA Litigation Initiative." Joining the litigation team will be Scott Lundhagen, an associate with Mudd Law Offices, and as local counsel, John G. Browning of Browning & Fleishman, P.C., Dallas, Texas.


Complete article

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RIAA Amends "Error" in Second Whitehead Declaration in Atlantic v. Does

Jonathan Whitehead
Changes His Mind

The RIAA has amended what it described as an "error" in its Second Whitehead Declaration in Atlantic v. Does 1-25, now claiming that its previous version -- saying that all defendants were users of Gnutella -- was wrong, and that only 11 of the 25 were Gnutella users, while 14 were Kazaa users.

The RIAA discovered this "error" when the defendant pointed out to the Court in his reply papers that RIAA's contention, in its second Whitehead declaration, that all defendants were Gnutella users was inconsistent with the first Whitehead declaration, which relied on Kazaa screen shots as evidence.

Amendment of Second Whitehead Declaration

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Pike & Fischer to Host Litigation Documents in RIAA and Consumer P2P Filesharing Copyright Litigations

We are pleased to announce that Internet Law & Regulation, published by noted legal publisher Pike & Fischer, will be hosting litigation .pdf documents from the RIAA and Consumer peer to peer file sharing, digital copyright litigations.

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Electronic Frontier Foundation Files Amicus Brief in Elektra v. Barker

The Electronic Frontier Foundation (EFF) has filed an amicus brief in Elektra v. Barker, pending before Judge Karas in the United States District Court, Southern District of New York, in support of Ms. Barker's dismissal motion and in opposition to the RIAA's argument that merely having files of copyrighted songs in a shared files folder is in and of itself a copyright infringement in violation of the copyright owner's "distribution rights".

The EFF argues:

In the thousands of suits filed thus far [by the RIAA]...the record companies have ... alleged infringement of their distribution rights under 17 U.S.C. § 106(3), apparently in hopes that an expansive judicial interpretation of the distribution right may support quick summary judgments based on the bare fact that a defendant has “offered” files for download.

Not all “distributions,” however, infringe § 106(3). The Copyright Act grants to
copyright owners the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106(3). The plain language of the Act— as well as legislative history, historical practice, and binding Second Circuit precedent— requires that a physical, tangible, material object change hands before the distribution right can be infringed. Plaintiffs’ complaint ignores this plain
statutory language and instead attempts to expand § 106(3) to encompass intangible
transmissions between computers over the Internet.

..........

Expanding § 106(3) to include transmissions would not only contravene the plain
statutory language, but would upset settled expectations in a variety of contexts and upset the delicate balance struck by Congress in the Copyright Act. Congress has enacted several copyright limitations, exceptions and statutory licenses based on the assumption that transmissions are properly encompassed by the public performance right, not the distribution right. Treating Internet transmissions as “distributions” under § 106(3) threaten those statutory provisions.

Accordingly, because “the distribution right as currently framed… does not appear to encompass transmissions of copyrighted works over computer networks,” Reese, The Public Display Right, at 126-27, and because Plaintiffs did not (and cannot) allege that Ms. Barker transferred any material objects embodying sound recordings, this Court should dismiss Plaintiffs’ distribution claim.

Amicus Curiae Brief of Electronic Frontier Foundation (Published at Internet Law & Regulation)
(Alternate link)

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RIAA Changes Positions, Now Says It's Not Lawful to Make a Copy for Personal Use From One's Own CD

In an article by Fred von Lohmann, the Electronic Frontier Foundation reports that the RIAA has changed its position and is now claiming that making a personal copy of a song from a CD one owns, for purpose of listening to it later or in a different format, is a copyright infringement:

RIAA Says Ripping CDs to Your iPod is NOT Fair Use

February 15, 2006

It is no secret that the entertainment oligopolists are not happy about space-shifting and format-shifting. But surely ripping your own CDs to your own iPod passes muster, right? In fact, didn't they admit as much in front of the Supreme Court during the MGM v. Grokster argument last year?

Apparently not.

As part of the on-going DMCA rule-making proceedings, the RIAA and other copyright industry associations submitted a filing that included .... as part of their argument that space-shifting and format-shifting do not count as noninfringing uses, even when you are talking about making copies of your own CDs.

Complete article.

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Electronic Frontier Foundation Requests Leave to Serve Amicus Curiae Brief in Elektra v. Barker

The Electronic Frontier Foundation has requested permission to file an amicus curiae brief in support defendant's motion to dismiss complaint in Elektra v. Barker.

February 15, 2006, Letter of Fred von Lohmann (Published at Internet Law & Regulation).

The proposed amicus brief would deal solely with the issue of "whether the "distribution right" granted to copyright owners by 17 U.S.C. § 106(3) encompasses transmissions over computer networks." In its letter, EFF said:

Plaintiffs in their opposition brief argue that their § 106(3) rights encompass such transmissions. However, the plain language of the Copyright Act - as well as legislative history, historical practice, and binding Second Circuit precedent -requires that a physical, tangible, material object change hands before the distribution right can be infringed. Accordingly, the § 106(3) right simply has no application in P2P file-sharing cases, as no physical object changes hands when individuals upload or download music over the Internet.

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

Computer & Communications Industry Assoc. & U.S. Internet Industry Association Ask Leave to File Amicus briefs in Elektra v. Barker

The Computer & Communications Industry Association and the U. S. Internet Industry Association have both sought permission to file amicus curiae briefs in Elektra v. Barker, pending before Judge Kenneth M. Karas in the United States District Court for the Southern District of New York, in Manhattan.

In doing so they have joined the Electronic Frontier Foundation, which previously requested permission to file an amicus brief in support of Ms. Barker's dismissal motion.

In a letter by their attorneys, Winston & Strawn LLP, the two associations indicated that their proposed brief would be to counter the RIAA's new argument that Ms. Barker would have violated the plaintiffs' "distribution" rights under the Copyright Act by simply "making available" certain files in a shared files folder.

They argued:

"The concept of "making available" can be so broad as to encompass the activities of virtually any company or person active on the Internet.

"The prospective amici fear that such an expansion of the "distribution" right under section 106(3) would be both unwarranted and harmful because it would (1) expand copyright law to cover activities not properly covered by the Copyright Act and (2) blur the sharp distinction between the "distribution" right and other copyright rights, such as the right of public performance or public display under 17 U.S.C. [sections] 106(4) and (5). Improper expansion of the Copyright Act and reconfiguration of copyright rights are the province of Congress, not the courts, and Plaintiffs' arguments would disturb existing law and settled expectations. The prospective amici believe it is very important for the Court to apply the plain statutory language of the Copyright Act rather than to adopt the Plaintiffs' interpretation of the law."

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Upcoming Court Dates: Open to the Public

All proceedings open to the public. All interested parties are invited to attend.

Wednesday, April 12, 2006. 4:00 P.M. USDC, EDNY. Brooklyn, NY. Magistrate Judge Levy. Maverick Recording v. Goldshteyn. Courtroom 619, 225 Cadman Plaza East, Brooklyn, NY. Conference.

Note: If you are aware of upcoming court dates in RIAA v. Consumer cases, please email information to musiclitigation@earthlink.net.
Thank you.
-R.B.

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Motion to Vacate Ex Parte Order, Quash Subpoena, and Sever & Dismiss Scheduled in Motown v. Does1-99

In an RIAA p2p file sharing case brought in Manhattan federal court by the RIAA, Motown v. John Does 1-99, the motion by John Doe #48 to (a) vacate the ex parte discovery order, (b) quash the subpoena issued pursuant to the order, and (c) sever and dismiss the action as to John Does 2-99, has now been scheduled.

On February 10th the Court set a briefing schedule for the motion:

February 24th: Defendant’s motion due

March 17th: Plaintiffs’ opposition due

March 31st: Defendant’s reply papers due

Additionally, the Court issued a stay of the ex parte discovery order and the subpoena that had been issued under its authority, pending the Court's determination of the motion. Plaintiff's counsel had asked the Court to limit the stay to just the moving defendant, but the Court denied that request, and indicated that the order and subpoena are stayed as to all defendants.

The judge is Hon. Naomi Reice Buchwald.

The court is the United States District Court for the Southern District of New York.

The docket number is 05CV9112(NRB).

Letter by John Doe's counsel requesting pre-motion conference and emergency stay
Letter by RIAA counsel requesting that stay be limited to John Doe #48 (Link not available. We have requested a digital file of the letter from RIAA counsel but they have declined to provide same)
Letter by John Doe's counsel responding to RIAA letter

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

French Court Dismisses Criminal Copyright Uploading Case; Holds No Evidence of Intent; No Presumption of Bad Faith

A French court has held that uploading with a peer to peer file sharing
program does not give rise to any presumption of "bad faith", and dismissed
a criminal copyright case brought against a peer to peer file sharer for
uploading, on the ground that the prosecution had failed to prove intent.
See http://www.audionautes.net/pages/PDF/audionautestgiparis.pdf.

The lawyer for the winning defendant was our friend Olivier Hugot of
HugotAvocat, in Paris, France, featured in our Directory of Lawyers Defending RIAA Lawsuits.

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"John Doe" Moves to Vacate Ex Parte Discovery Order in Motown v. Does 1-99

Defendant "John Doe #48" has requested a premotion conference in Motown v. Does 1-99, in Manhattan federal court,in anticipate of making a motion to vacate the ex parte discovery order, quash any subpoenas issued under its authority, and sever and dismiss the case as to John Does 2-99. His letter to Judge Buchwald also seeks an emergency stay of the order and subpoena.

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

New "national counsel" appears for RIAA in Elektra v. Barker

The new "national counsel" for the RIAA have entered an appearance in Elektra v. Barker, one of the two cases in which the RIAA has advanced its new argument that merely making files available is in and of itself a copyright infringement, even without any uploading, downloading, or other copying.

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

In UMG v. Lindor RIAA Says It Needs Discovery to Oppose Summary Judgment Motion

The RIAA has opposed defendant's request for a pre-motion conference in UMG v. Lindor, arguing that it needs discovery in order to oppose Ms. Lindor's motion for summary judgment.

February 7, 2006, letter of Maryann Penney

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

RIAA's "Making Available" Argument Comes to a Head this Week

The RIAA's newly discovered argument that merely "making available" is in and of itself a copyright infringement, even without any physical copying, comes to a head this week in not one, but two, cases in Manhattan federal court, Elektra v. Barker and Atlantic v. Does.

In Elektra the issue arises in the context of a motion to dismiss complaint.

In Atlantic it comes about in a motion to vacate the ex parte discovery order.

Both sets of litigation papers may be found in our Index of Litigation Documents.

Reply papers in Elektra were filed on February 6th:

Defendant's Reply Memorandum of Law in Support of Motion to Dismiss Complaint

Defendant's reply memorandum in Atlantic was filed on February 7th:

Reply Memorandum of Law of John Doe #8 in Further Support of Motion to Vacate Ex Parte Discovery Order

For unexplained reasons, SONY BMG withdrew from both cases after the motions were made.

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

Zi Mei Slams Whitehead's Second "Declaration"

In their opposition papers in Atlantic Recording v. John Does 1-25, RIAA executive Jonathan Whithehead put in a second declaration, trying to justify his first declaration, which had formed the basis for the Court's ex parte discovery order.

Computer programmer Zi Mei has now submitted a reply affidavit sharply criticizing Whitehead's second declaration, pointing out its inconsistencies with the first declaration, as well as its inconsistency with the way computers work, and with the way the internet works.

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

RIAA Admitted in November 2004 testimony that most P2P users aren't even aware that files are able to be shared

While the RIAA has been going around trying to villify P2P end users as "pirates" and "downloaders", we have learned that on November 15, 2004, in testimony before the Federal Trade Commission, the RIAA admitted that most P2P end users whose files are in a "shared files folder" don't even know that their files are in a shared files folder:

"As an initial matter, P2P software may, upon installation, automatically search a user’s entire hard drive for content. Files that users have no intention of sharing may end up being offered to the entire P2P network. Continued sharing of personal information is hard to avoid and is facilitated by confusing and complicated instructions for designating shared items. A study by Nathaniel S. Good and Aaron Krekelberg at HP Laboratories showed that “the majority of the users…were unable to tell what files they were sharing, and sometimes incorrectly assumed they were not sharing any files when in fact they were sharing all files on their hard drive.”

See Peer-to-Peer File-Sharing Technology: Consumer Protection and Competition Issues; P2P File-Sharing Workshop – Comment, P034517; Comments of The Recording Industry Association of America (RIAA), November 15, 2004, pp. 8-9 .

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

SONY BMG Withdraws from Atlantic v. Does

SONY BMG, along with BMG Music, Arista Records, and Loud Records, has voluntarily dropped out of the Atlantic v. Does 1-25 case in Manhattan federal court.

Notice of Voluntary Dismissal

SONY BMG had voluntarily dismissed its claims, last week, in Elektra v. Barker.

No explanation for the voluntary discontinuance has been given.

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

Marie Lindor to Move for Summary Judgment

Marie Lindor, a home health aide who has never bought, used, or even turned on a computer in her life, but was nevertheless sued by the RIAA in Brooklyn federal court for using an "online distribution system" to "download, distribute, and/or make available for distribution" plaintiff's music files, has requested a pre-motion conference in anticipation of making a summary judgment motion dismissing the complaint and awarding her attorneys fees under the Copyright Act.
Request for pre-motion conference for summary judgment motion

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RIAA Changing Law Firms?

We have received several reports that the RIAA is changing law firms, from Kansas City, Missouri-based Shook Hardy & Bacon to Denver, Colorado-based Holme Roberts & Owen.

Ray Beckerman, the author of this blog, who is one of the attorneys representing people who have been sued by the RIAA for having internet access accounts which were allegedly used to set up peer to peer file sharing accounts, had this comment:

It remains to be seen what significance there is to this change, other than the RIAA's dissatisfaction with its previous attorneys.

If the RIAA thinks that by changing attorneys it can somehow alter the self destructive nature of this litigation onslaught, it is mistaken.

If, on the other hand, the change in attorneys signals a change in philosophy and tone, and that present lawsuits will be discontinued, and that lawsuits will only be brought where (a) there is clear evidence of an actual copyright infringement by a defendant, and (b) there has been an unsuccessful good faith attempt to obtain a cease and desist agreement, then this will be a positive development.

But if the pit bull tactics of the RIAA's predecessor counsel are continued unabated by the new counsel, this will accomplish nothing except further damage the recording industry, and wreak havoc in people's lives.

In view of the fact that I and my associate Ty Rogers are working on a number of RIAA cases at the moment, we should know pretty soon which shoe fits.

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"Fight Goliath" Drive in Full Swing

Up to date figures on contributions to "Fight Goliath" fund raising drive for Patricia Santangelo RIAA defense

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

Digital Music News Reports: "Nettwerk Chief Steps Up Challenge Against RIAA"

This in from Digital Music News:

Nettwerk Chief Steps Up Challenge Against RIAA

Last week, the RIAA received a surprising challenge from major management firm Nettwerk Music Group, home to multi-platinum artists Avril Lavigne, Sarah McLachlan, Barenaked Ladies, Dido and Sum 41. The group is now aiding accused file-swapper David Greubel in his defense against an RIAA lawsuit, exposing a rift within the music industry. Greubel was targeted by the major label trade group as part of a routine series of lawsuits, and subsequently reached out to a Nettwerk artist for assistance. The result was a commitment by Nettwerk to offer financial and legal support, potentially the first of several similar efforts.

During a recent talk radio program hosted by industry critic Bob Lefsetz, Nettwerk CEO Terry McBride pointed to further action ahead. According to McBride, several executives "have reached out" for ways to support the pushback. The end goal, according to McBride, is to "shame" the RIAA with a precedent that will terminate the continuing string of lawsuits against individual file-swappers.

Complete article

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