Recording Industry vs The People: June 2006

Thursday, June 29, 2006

New Case in Westchester, Warner v. Cassin: Defendant to Make Dismissal Motion

In a new RIAA case in Westchester, Warner v. Cassin, lawyers for defendant have indicated that they intend to move to dismiss the complaint:

June 2, 2006, Letter of attorneys for defendant
June 8, 2006, Letter of attorneys for plaintiffs
June 9, 2006, Letter of attorneys for defendant

Keywords: digital copyright online 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

Friday, June 23, 2006

Discovery Dispute in UMG v. Lindor: RIAA Refuses to Answer Interrogatories & Document Requests, Asserting "Privilege"

In UMG v. Lindor, pending in Brooklyn federal court, the RIAA has refused to answer the defendant Marie Lindor's document requests and interrogatories, precipitating an application by Ms. Lindor's attorneys to Magistrate Judge Robert M. Levy.

Also in dispute is whether, if the RIAA wishes to use at trial the results of its "mirror imaging" inspection of Ms. Lindor's hard drive, it will have to give Ms. Lindor an opportunity for pretrial discovery into the taking and analysis of the mirror image.

Defendant's Request for Documents*
Defendant's Interrogatories*
Plaintiffs' Response to Interrogatories and Document Request*
Draft Stipulation for Mirror Imaging Procedure*
June 20, 2006, application to Magistrate Levy*
RIAA Response*
Exhibit A*
Exhibit B*
RIAA Motion to Compel*
Supplement Part 1*
Supplement Part 2*
Supplement Part 3*
Beckerman Reply to RIAA*
* Document published 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

Tuesday, June 20, 2006

Flowerburger Records Launches Online Petition Against RIAA Lawsuits

An online petition drive against the RIAA litigation campaign has been launched by Flowerburger Records.

Their press release:

The managers of Avril Lavigne, The Streets and Elbow are amongst those who have signed an online petition opposing the British music industry for suing fans who use p2p (peer-to-peer) networks.

Launched by the record label Flowerburger Records, the petition invites people to show their distaste for the ongoing policy of the British record industry’s trade association, the BPI, of threatening fans with legal action unless they pay sizeable fines.

“Flowerburger’s petition reflects the opinion of a growing number of people in the industry, including its artists, who cannot stomach what is being done to fans in their name,” says Terry McBride of Nettwerk Music Group, who manages Avril Lavigne, Sarah McLachlan and Sum 41. Terry is a vocal opponent of the American record industry’s trade association, the RIAA, arguing against their policy of suing music fans at his website www.savethemusicfan.com

Flowerburger Records was founded by long-standing music industry accountant Chris Thomas.

“We believe that musicians have to be paid for their work, but we don’t think that suing fans or the parents of kids on £5 a week pocket money is the answer,” says Chris. “We are supposed to be a creative industry, so we should be exploring ways to earn money for our artists from p2p, not using the destructive force of litigation.”

To sign their petition go here.

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

Saturday, June 10, 2006

Judge Owen Issues Order Denying John Does' Motion in its Entirety in Warner v. Does 1-149

Judge Owen has issued an order denying John Does' motion to (a) vacate the ex parte discovery order, (b) quash the subpoena, and (c) sever and dismiss the action as to John Does 2-149, in Warner v. Does 1-149:

Order Denying John Does' Motion to Vacate Ex Parte Discovery Order, Quash Subpoena, and Sever and Dismiss as to John Does 2-149*

This is a transcript of the oral argument which took place before Judge Owen which took place on Friday, May 19, 2006, in Warner v. Does 1-149:

Transcript of oral argument of John Does' motion to (a) vacate ex parte discovery order, (b) quash subpoena, and (c) sever and dismiss as to John Does 2-149*

Among the issues raised by the motion papers were:

-whether the evidence the RIAA had submitted in support of the ex parte order sufficiently made out a prima facie case;

-whether the evidence the RIAA submitted was technically valid;

-whether merely 'making available' is a copyright infringement;

-whether the complaint in the action adequately pleads copyright infringement; and

-whether there was any basis for joining 149 different defendants in one case.

The legal papers raising these issues are:

Complaint.*
Ex Parte Order.*
Second Ex Parte Order.*
John Does' Notice of Motion*
Affidavit of Morlan Ty Rogers in Support of Motion*
Affidavit of Zi Mei in Support of Motion*
Memorandum of Law in Support of Motion*
Memorandum of Law in Opposition*
Reply Memorandum of Law in Support of Motion*

March 31, 2006, Letter of Morlan Ty Rogers Requesting Stay

March 31, 2006, Letter of J. Christopher Jensen Opposing Stay as to Other 147 Defendants

A similar motion was made in Motown v. Does 1-99, before Judge Naomi Reice Buchwald, and is pending.

Other similar motions made in Atlantic v. Does 1-25 were denied, by Judge Swain, the last ruling coming on the heels of Judge Owen's.

All of the above cases are in Manhattan.

Other motions which may be pertinent to the John Does' motions, because they involve the legal sufficiency of the RIAA's standard complaint, are Maverick v. Goldshteyn before Judge Trager in Brooklyn and Elektra v. Barker before Judge Karas in Manhattan.

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

Personal comment from Ray Beckerman, one of attorneys for defendants:

"We believe that the rulings from Judge Owen and Judge Swain are totally incorrect. However, under the federal rules, they are not appealable. And because the RIAA's tactic is to discontinue the case before the rulings do become appealable, we will never be able to obtain the guidance of the Second Circuit on these most important issues affecting our country."

* Document 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

Tuesday, June 06, 2006

Judge Denies Motion to Vacate RIAA Ex Parte Discovery Order in Atlantic v. Does 1-25

In Atlantic v. Does 1-25, the first of three cases in which computer programmer Zi Mei attacked the evidentiary showing made by the RIAA in support of its ex parte discovery order, Judge Laura Taylor Swain denied "John Doe's" motion to vacate the discovery order.

Order denying motion to vacate ex parte discovery order*.

* Document published 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

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