RIAA Tries to Get Brooklyn Judge to Follow Texas and Arizona Cases Where Judges Said They Have "Incomplete Understanding" of Technology

In Maverick v. Goldshteyn, in Brooklyn federal court, where a motion to dismiss the complaint has been pending for about 7 months, the RIAA suddenly -- on Friday, July 28th -- sent the judge a letter enclosing 3 decisions, 1 from Arizona, 1 from Waco, Texas, and 1 from Abilene, Texas, all of which declined to rule on the RIAA's "making available" argument on the ground that the judges had "incomplete understanding" of Kazaa technology to decide the motion.

On July 29th Ms. Goldshteyn's lawyer (the undersigned) sent his own letter to the judge indicating why those decisions were bad authority:

July 28, 2006, Letter of Richard Gabriel to Judge Trager*
July 29, 2006, Letter of Ray Beckerman to Judge Trager*

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

Another Motion to Dismiss Complaint Denied in Texas, Again Because Court has "Incomplete Knowledge of Technology", in Fonovisa v. Alvarez

Yet another motion to dismiss a complaint has been denied in Texas, again with the judge saying that he has "incomplete understanding of the P2P technology at this stage" to decide whether or not "the mere presence of copyrighted sound recordings in Defendant's share file constitutes infringement."

This was in Fonovisa v. Alvarez in Abilene, Texas.

Decision and order denying motion to dismiss complaint*

Once again the judge has ruled that the defendant must go through the expense of pretrial discovery before he can have a sufficient "understanding" to decide the issues.

This is the same conclusion reached in Waco, Texas, in Warner v. Payne, and in Arizona in Interscope v. Duty.

*Document published online at Internet Law & Regulation

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

My Open Letter About the Kazaa Settlement

My editorial opinion:

I have seen reports that Kazaa has entered into a settlement with the RIAA, under which it will seek to sell "licensed" RIAA music throught p2p technology.

The terms of the settlement have not been disclosed.

I am assuming that the settlement does not in any way affect the thousands of lawsuits against Kazaa customers. If that is so, it's wrong.

Many of the fine people who are being terrorized by the RIAA are in this mess because of Kazaa, and a settlement which gets Kazaa off the hook with the RIAA but doesn't do anything for the good folks who took Kazaa at its word, is not something I find comforting in the least.

I would have thought that Kazaa would have done something to end the reign of terror against its customers.

If the settlement doesn't provide for the cessation of RIAA litigation against Kazaa customers, and if Kazaa will be working with the RIAA to sell licensed distribution, I would call upon all members of the public to boycott the 'new Kazaa' to the same extent that they are boycotting the RIAA.

And I would call upon all defendants in RIAA cases, who are being sued because of Kazaa, to consider -- if they have the means to do so -- cross suing Kazaa.

-R.B.

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

RIAA Discontinued Case in California, Virgin v. Marson

We have recently learned of a case in California, Virgin Records v. Marson, where earlier this year, after 6 months of litigation, the RIAA dropped the case.

As in all of the RIAA cases, the only basis the RIAA had for its claim against Mrs. Marson was that she paid for the internet access and owned the computer on which the shared files folder resided.

Faced with evidence that numerous other people had access to the Internet connection and/or the computer and that any of those people could have engaged in the allegedly infringing conduct, the RIAA agreed to dismiss.

Stipulation and Order of Dismissal*

(Mrs. Marson's legal team at Coast Law Group, headed up by Seyamack Kouretchian, are litigating another p2p filesharing case brought by the motion picture industry entitled Universal City Studios Productions, LLLP v. Shawn Hogan. Because (a) the Hogan case involves many of the same issues that arise in the RIAA cases, (b) the MPAA has been engaged in cartel-like behavior with the RIAA, and (c) Mr. Hogan (unliked most defendants in these cases) is a litigant who is in a position to fight back, thereby increasing the likelihood of a full and fair airing of the copyright law issues, we are initiating coverage of that case in our index of litigation documents, although it does not directly involve the RIAA. )

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Urgent Appeal for Information from All People in the Radio Business!!!!

Urgent appeal for help from our friends in the radio business...

For one of our litigations we are collecting information on the use by the major record labels of peer-to-peer file sharing technology to make song files available to radio stations.

Please circulate this to anyone you know who is in, or may know people who are in, the radio business.

Anyone who has information is urgently asked to communicate it to

Ray Beckerman
212-763-6809
rbeckerman@vanfeliu.com

or

Ty Rogers
212-763-6838
mtrogers@vanfeliu.com

Thank you.

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

Lindor Motion to Amend Answer, to Include Unconstitutionality Defense, Fully Briefed

The motion by Marie Lindor in UMG v. Lindor to amend her answer to include a defense challenging the constitutionality of the RIAA's argument that it is entitled to $750 per song damages for 70 cents per song downloads has been fully briefed, and is now awaiting court action.

Copies of Ms. Lindor's reply papers are below:

Reply Memorandum in Support of Defendant's Motion*
Reply Affidavit in Support of Defendant's Motion*

* Documents published online at Internet Law & Regulation

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

Freedom of Speech Fundraiser for P2P Net to Take Place in Toronto, Canada, Saturday August 5th

As many of you may know, Sharman Networks (the owner of Kazaa) and its CEO, Nikki Hemming, have sued p2pnet owner Jon Newton, in Canada, in a suit that threatens freedom of speech. Please if you can be in Toronto on August 5th attend the "defense fund" fundraiser scheduled for Sautrday, August 5th, at 9:00 p.m.:

Online Freedom of Speech Fundraiser

Saturday August 5th, the Rivoli Restaurant & Club (332 Queen St. West, Toronto)

Doors open: 9:00 P.M.

Artists: Aceface, Dennis O'Toole, Kobotown, Lindy, and Neil Leyton.

Background:

Jon Newton, from Vancouver Island, BC, the founder and editor of p2pnet.net , is being sued by Nikki Hemming, ceo of the infamous Australian Kazaa p2p application. p2pnet was initially also being sued by Kazaa owner Sharman Networks.

The precedent-setting case, the first of its kind, vividly illustrates the danger of applying ancient laws to Freedom of Expression in the digital age.

Sharman and Hemming claimed they'd been libelled in p2pnet posts. But Sharman recently abandoned its case, leaving Hemming to carry the allegation that Newton defamed her in an article outlining Australian court proceedings into her assets, by herself. She also continues to demand the identity of a p2pnet reader who'd posted an anonymous comment included in the same story.

"Our Canadian libel laws say 'Guilty until proven innocent' and if Hemming wins, Canadian bloggers might as well pack up and close their Net accounts because the right of online freedom of speech will be killed stone dead," says Newton.

"And there's something else: as far as I'm concerned, an anonymous post is the same as a confidential source. I don't have to like a post, or even agree with it. But I believe that as an honest and responsible human being, I do have to safeguard the poster, if indeed I know who he or she is which in this case, I didn't."

To help Newton with his legal fees, Toronto based singer/songwriter Neil Leyton has written a song about the situation, and has organized a fundraiser for August 5th at the Rivoli, with fellow Fading Ways Music label-mates Aceface, as well as friends Lindy, Kobotown and Dennis O'Toole.

The Rivoli doors open at 9 PM, and the cover is $10.

Leyton's song, as well as other music donated by the participating artists, will also be on sale at the concert.

By way of a pre-concert information session / press conference, a special Online Freedom of Expression round table is also taking place at Toronto's Centre for Social Innovation, 215 Spadina Avenue, Suite 120, Toronto, from 3 - 5PM. The round table will feature the following panelists:

Moderator: Rob Hyndman - http://www.robhyndman.com/

Jon Newton - http://p2pnet.net/story/9333

Jon will have statements from:

Jon will have statements from:

* Phillipa Lawson of CIPPIC

* Michael Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa

* BC media lawyer Dan Burnett who's representing Jon in his upcoming libel case with Kazaa boss Nikki Hemming

* Jason Munning of Ten Mile Tide, the former Kazaa poster band which dropped its association with Sharman Networks and put its albums online for free to protest the libel action. http://www.p2pnet.net/story/9023

Jason Young of Deeth Williams Wall - http://www.dww.com/bios/jmy.htm

Michael Pilling of OpenPolitics.ca: http://www.openpolitics.ca/tiki-index.php

Russell McOrmond of Digital Copyright Canada: http://www.digital-copyright.ca/

For additional information contact Neil Leyton at nleyton@gmail.com, or Tina Siegel at tina.siegel@gmail.com.

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Anti-DRM Forces Come to the Aid of RIAA Defendants

We are excited to report that Defective by Design , the free software movement's campaign against the record companies' use of digital rights management ("DRM"), has started a fund-raising drive to help victims of the RIAA v. Consumer lawsuits.
The link for making contributions is:
https://www.fsf.org/associate/support_freedom/dbd_donate

Feel free to copy the link to your own blog or web site, and to circulate it far and wide.

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

Motion to Dismiss Complaint Denied in Warner v. Payne, in Waco, Texas

We have just learned of a motion to dismiss complaint made in Waco, Texas, in Warner Bros. Records v. Tyler Payne, and that the motion has been denied:

Order denying motion to dismiss complaint*

As in Interscope v. Duty, the Court indicated that

"the Court is not prepared at this stage of the proceedings to rule out the Plaintiffs' "making available" theory as a possible ground for imposing liability. A more detailed understanding of the Kazaa technology is necessary and Plaintiffs may yet bring forth evidence of actual uploading and downloading of files, rendering use of the "making available" theory unnecessary."

* Available online at Internet Law & Regulation

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

RIAA Case Against Mother Dismissed With Prejudice; Court May Award Attorneys Fees Against RIAA

In Capitol Records v. Foster, in federal court in Oklahoma, a case against a mother -- whose only connection to the alleged filesharing was that she was the person who paid for the internet access -- has been dismissed with prejudice.

Faced with the mother's motion for leave to file a summary judgment motion dismissing the case against her, and awarding her attorneys fees, the RIAA made its own motion for permission to withdraw its case.

The Court granted the motion and let the RIAA drop its case.

The Court went on to hold that the defendant, Ms. Foster, is the "prevailing party" under the Copyright Act and is therefore eligible for an award of attorneys fees.

The Court then indicated that it would decide the attorneys fees award question upon receipt of a motion for attorneys fees.

July 13, 2006, Order Dismissing Case and Finding Defendant to be Eligible for Award of Attorneys Fees against Plaintiffs*

For background of the case see:
Amended Answer and Counterclaims*

* Document available online at Internet Law & Regulation

The attorney for Ms. Foster is Marilyn D. Barringer-Thomson, in Oklahoma City, Oklahoma.

Steve Gordon, a New York-based entertainment attorney, formerly in house counsel at SONY, and the author of the well known book on digital music "The Future of the Music Business", had this comment on Capitol v. Foster:

"This case demonstrates weakness in RIAA's cases in general. If they cannot back up their claims of infringement with legally required evidence, this could affect all their cases and encourage more defendants to fight back -- especially if, as in this case, the court awards attorneys fees for the 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

Netherlands Appeals Court Affirms in Foundation v. UPC Nederland

We have just learned that the 2005, decision of the District Court of Utrecht, in the Netherlands, in Foundation v. UPC Nederland, in which it was held that Media Sentry's investigation of peer to peer file sharing over software such as that supplied by Kazaa and Grokster was flawed and not "lawful", and that the internet service providers were not permitted to divulge subscriber information to the RIAA's Netherlands counterparts, has been affirmed by a Netherlands appeals court:

http://www.theregister.com/2006/07/14/fileswappers_protected/

Background documents:

Lower court decision
(Alternate link) (Alternate link #2) (Alternate link #3)(Alternate link #4)

Expert witness declaration
(Alternate link) (Alternate link #2) (Alternate link #3)(Alternate link #4)

Ray Beckerman, one of the attorneys representing RIAA defendants in the U.S., had this comment:

"The courts of the Netherlands and Canada continue to be ahead of those in the United States.

"In the United States the RIAA's ex parte discovery orders are routinely being granted by the judges, based on a sham 'evidentiary' basis.

"I can't wait for our courts to finally start scrutinizing the RIAA's tactics with the care and thoughtfulness exhibited by the courts of the Netherlands and Canada.

Documents furnished courtesy of
Christiaan Alberdingk Thijm
SOLV Advocaten
P.O. Box 75538
1070 AM Amsterdam
Schippersgracht 1-3
1011 TR Amsterdam
The Netherlands
T +31 20 5300160
F +31 20 5300170
M +31 6 25017 235
E thijm@solv.nl
W www.solv.nl

These are the attorneys who successfully represented the defendants.

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

"Defective by Design" Campaign to Conduct Conference Call about Helping Defendants in RIAA cases.

The Defective By Design campaign has announced a conference call
scheduled for Wednesday, July 19th, at 3:00 p.m., with Ray Beckerman
(the author of this blog), about the importance of helping defendants
being sued by the RIAA cartel:
http://defectivebydesign.org/node/391

In the words of Peter T. Brown, the Foundation's Executive Director:

Ray Beckerman is the attorney leading the legal fight against the RIAA
in the USA. Join us on this conference call and learn how stopping these
law suits will help stop the imposition of DRM.

At this moment there are law suits in progress that could have far
reaching consequences for the Internet, copyright law, and the attempt
by Big Media to push DRM down our throats. Ray has news that will help
us connect the dots between DRM and the RIAA law suits, and show us what
action we can take.

In our fight against DRM we face a cartel of large media corporations
colluding with each other illegally. All the Big Media companies act as
one in their insistence that digital restrictions on technology must be
put in place. And they all act as one in their support for the
RIAA-fronted law suits. This type of collusion is unprecedented and
joint legal action of this nature is almost unheard of.

Competitors usually seek out a competitive advantage over one another.
In the entertainment industry you would expect to see companies
releasing their product in formats that are better for their customers.
Instead, these "competitors" have a delicate agreement in place to force
us to accept their defective products -- defective because they are
crippled with DRM. We can help break this agreement by applying
appropriate pressure on the RIAA law suits. Join us and learn how
stopping the RIAA law suits can stop DRM.

* Conference call details will be posted on DefectiveByDesign.org
tomorrow at noon Pacific.

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

Stay of Ex Parte Discovery Order Dissolved in Motown v. Does 1-99

Judge Buchwald in Motown v. Does 1-99 has dissoved her stay of the RIAA's ex parte discovery order.

Notice of motion to vacate ex parte discovery order, quash subpoenas, and sever and dismiss as to John Does 2-99
Affidavit of Morlan Ty Rogers in Support of Motion
Affidavit of Zi Mei in Support of Motion
Memorandum of Law in Support of Motion
Plaintiffs' Memorandum of Law In Opposition to Motion
John Doe's Reply Memorandum of Law In Support of Motion
Transcript of July 6, 2006, proceeding
Order dissolving stay

*Published online at Internet Law & Regulation

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

Marie Lindor Moves to Add Affirmative Defense of Unconstitutionality of $750-per-song Damages for 70 cent downloads

Defendant Marie Lindor, the defendant in UMG v. Lindor in Brooklyn federal court, has made a motion to amend her answer to include an affirmative defense alleging the unconstitutionality of the $750-per-song statutory damages being sought by the plaintiffs for 70-cent downloads.

Notice of Motion to Amend Answer*
Ty Rogers Affidavit*
Aram Sinnreich Affidavit*
Memorandum of Law*
RIAA Memorandum in Opposition*

* Published online at Internet Law & Regulation

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

Canadian Music Creators Coalition Says: "We Do Not Want to Sue Music Fans"

The Canadian Music Creators Coalition has come out against the RIAA lawsuits against consumers. In the words of Steve Page, of Barenaked Ladies:

"Concerned with the prospect of record-label lawsuits against MP3 file sharers, and the continuing march toward greater restrictions on the use of music, the artists -- including Avril Lavigne, Sarah McLachlan, Chantal Kreviazuk, Sum 41, Broken Social Scene, Stars, Raine Maida of Our Lady Peace, Dave Bidini of Rheostatics, Billy Talent, John K. Sampson of Weakerthans, Sloan, Andrew Cash, Bob Wiseman, a co-founder of Blue Rodeo, and my own band, the Barenaked Ladies -- launched the Canadian Music Creators Coalition.

"The Coalition brings together a diverse array of musical backgrounds and interests. We create everything from popular top-40 tunes to critically acclaimed selections to grassroots folk songs. We make rock, pop, blues, jazz, R&B, hip hop, folk, country and even classical music. We play various roles in the music production process. We are not just singers and songwriters (although most of us write or perform our own music to some extent). Some of us are also record producers and music promoters, for ourselves or other artists.

..........

"[W]e believe that suing our fans is destructive and hypocritical. We do not want to sue music fans, and we do not want to distort the law to coerce fans into conforming to a rigid digital market artificially constructed by the major labels."

Complete Statement published at Canada.com

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

Transcript Obtained in Motown v. Does 1-99; Judge Buchwald Refuses to Vacate RIAA Ex Parte Discovery Order

At the commencement of the "oral argument" conducted before Judge Naomi Reice Buchwald in Manhattan federal court on Thursday, July 6th, Judge Buchwald indicated that she had already decided to deny the defendant's motion to (a) vacate the RIAA's ex parte discovery order on the ground that it was not supported by competent evidence, (b) quash the RIAA's subpoena on the ground that the underlying complaint fails to state a claim for relief under the copyright laws, and (c) dismiss and sever as to John Does 2-99 on the ground that they are improperly joined in the case, in violation of the federal rules for permissive joinder.

Copies of the transcript of the judge's announcement, and of the primary litigation documents, in which the issues are outlined, are published online at Internet Law & Regulation:

Transcript of July 6, 2006, proceeding
Notice of motion to vacate ex parte discovery order, quash subpoenas, and sever and dismiss as to John Does 2-99
Affidavit of Morlan Ty Rogers in Support of Motion
Affidavit of Zi Mei in Support of Motion
Memorandum of Law in Support of Motion
Plaintiffs' Memorandum of Law In Opposition to Motion
John Doe's Reply Memorandum of Law In Support of Motion

Ray Beckerman, one of the attorneys for John Doe #48, the moving party, had this comment:

"I am deeply disappointed by Judge Buchwald's ruling. I think it is incorrect, but under the federal rules it is not appealable. I hope that Judge Buchwald will certify the matter for an immediate appeal, and stay the effect of her ruling until we have had a chance to bring an appeal in the Second Circuit."

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

Motion Denied in Motown v. Does 1-99; Judge Refuses to Vacate RIAA Ex Parte Discovery Order

At the commencement of the "oral argument" conducted before Judge Naomi Reice Buchwald in Manhattan federal court on Thursday, July 6th, Judge Buchwald indicated that she had already decided to deny the defendant's motion to (a) vacate the RIAA's ex parte discovery order on the ground that it was not supported by competent evidence, (b) quash the RIAA's subpoena on the ground that the underlying complaint fails to state a claim for relief under the copyright laws, and (c) dismiss and sever as to John Does 2-99 on the ground that they are improperly joined in the case, in violation of the federal rules for permissive joinder.

Copies of the transcript of the judge's announcement, and of the primary litigation documents, in which the issues are outlined, are published online at Internet Law & Regulation:

Transcript of July 6, 2006, proceeding
Notice of motion to vacate ex parte discovery order, quash subpoenas, and sever and dismiss as to John Does 2-99
Affidavit of Morlan Ty Rogers in Support of Motion
Affidavit of Zi Mei in Support of Motion
Memorandum of Law in Support of Motion
Plaintiffs' Memorandum of Law In Opposition to Motion
John Doe's Reply Memorandum of Law In Support of Motion

Ray Beckerman, one of the attorneys for John Doe #48, the moving party, had this comment:

"I am deeply disappointed by Judge Buchwald's ruling. I think it is incorrect, but under the federal rules it is not appealable. I hope that Judge Buchwald will certify the matter for an immediate appeal, and stay the effect of her ruling until we have had a chance to bring an appeal in the Second Circuit."

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

Oral Argument Set in Motown v. Does 1-99 in Manhattan for Thursday, July 6th, at 10 A.M.

Oral argument is scheduled to be conducted before Judge Naomi Reice Buchwald in Manhattan federal court on Thursday, July 6th, 10 A.M., in Motown v. Does 1-99.

This will be the argument of a John Doe's motion to (a) vacate the RIAA's ex parte discovery order on the ground that it was not supported by competent evidence, (b) quash the RIAA's subpoena on the ground that the underlying complaint fails to state a claim for relief under the copyright laws, and (c) dismiss and sever as to John Does 2-99 on the ground that they are improperly joined in the case, in violation of the federal rules for permissive joinder.

The primary litigation documents, in which the issues are outlined, are published online at Internet Law & Regulation:

Notice of motion to vacate ex parte discovery order, quash subpoenas, and sever and dismiss as to John Does 2-99
Affidavit of Morlan Ty Rogers in Support of Motion
Affidavit of Zi Mei in Support of Motion
Memorandum of Law in Support of Motion
Plaintiffs' Memorandum of Law In Opposition to Motion
John Doe's Reply Memorandum of Law In Support of Motion

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