Recording Industry vs The People: October 2006

Tuesday, October 31, 2006

New Contested Case in Brooklyn, Elektra v. Schwartz

A disabled mother, who has never engaged in file sharing or downloading, has been sued in Brooklyn, in Elektra v. Schwartz. She has interposed a counterclaim for attorneys fees, and has asked the Court for a premotion conference, or waiver of such a conference, so that she can proceed with a motion for summary judgment:

Answer and Counterclaim*
Exhibit A to Answer and Counterclaim (Amicus Brief in Capitol Records v. Debbie Foster)*
October 28, 2006, Letter of Ray Beckerman to Judge Trager (In connection with summary judgment motion)*
November 1, 2006, Letter of Richard J. Guida to Judge Trager (In connection with summary judgment motion)*

* Document published online at Internet Law & Regulation

Commentary & discussion:
"RIAA sues multiple sclerosis Mum" (p2pnet)
p2pnet.net
Digital Music Weblog
LittleRadio.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

Shawn Hogan Moves to Dismiss MPAA Case on Ground of Defective Copyright Registration

In Universal v. Hogan, the MPAA's case against internet executive Shawn Hogan, based upon alleged file sharing concerning a single film -- "Meet the Fockers" -- Mr. Hogan's attorneys have made a motion to dismiss the complaint on the ground that the copyright registration was defective. According to Mr. Hogan's papers, the copyright registration was not applied for until two (2) months after the applicant had previously sold off the rights to "Meet the Fockers":

Motion to dismiss complaint*
Declaration of Seyamack Kouretchian in Support of Motion to dismiss complaint*

* Document published online at Internet Law & Regulation

Commentary & discussion:
p2pnet.net
TechDirt

Friday, October 27, 2006

Court Refuses to Allow RIAA Access to Defendant's Hard Drive in SONY v. Arellanes; Only Neutral Expert May Examine

In SONY v. Arellanes, the Court has refused to allow the RIAA untrammelled access to the defendant's hard drive, holding instead that only a mutually agreeable, neutral computer forensics expert may examine the hard drive, and that the parties must agree on mutually acceptable provisions for confidentiality:

October 27, 2006, Order, Restricting Hard Drive Inspection to Inspection By Mutually Agreed Upon Neutral Computer Forensics Expert*

Ms. Arellanes is represented by John G. Browning, of Browning & Fleischman, located in Dallas, Texas.

* Document published online at Internet Law & Regulation

EDITORIAL COMMENT: "This ruling is of great importance, and should be considered a model to be followed in all future RIAA v. Consumer litigations. The chicanery and gamesmanship that is going on behind the scenes with the hard drive report in the UMG v. Lindor case, which my office is handling, demonstrates that it is not safe to permit the RIAA to conduct its own, behind the scenes hard drive analysis by its own so called expert. The SONY v. Arellanes decision balances and protects the rights of both sides in a fair and evenhanded manner, which is usually anathema to the RIAA."
-R.B.

Further commentary and discussion:

p2pnet.net
Internet Cases
groklaw
Digital Music Weblog
digg
Slashdot
Ars Technica
Tech Dirt
TechSpot
BroadbandReposts.com

Wednesday, October 25, 2006

In UMG v. Lindor RIAA Insists It Doesn't Have to Produce Hard Drive Report Until Discovery Cutoff Date Despite Promises to Produce it Earlier

As we reported yesterday, two and a half months after it had made a "mirror image" of the hard drive of the computer in Marie Lindor's apartment, the RIAA backed off of its previous promise to deliver its expert's forensics report by October, 12th, now claiming it didn't have to produce the report until the December 31st discovery cutoff date. Ms Lindor's lawyers asked the Magistrate Judge to dismiss the complaint.

Now, in response to that motion, the RIAA is repeating to the Magistrate what it had said to Ms. Lindor's lawyers, that its previous agreements as to the time frame were just "professional courtesy", and that they are not required to give the report to the defendant's lawyers until December 31st:
October 25, Letter of Richard L. Gabriel (Hard Drive Report)*
Attachment to October 25 Letter of Richard L. Gabriel (Hard Drive Report)*

Ms.Lindor's motion:

October 23, Letter of Ray Beckerman (Hard Drive Report)*
Attachments to October 23, Letter of Ray Beckerman (Hard Drive Report)*

* Document published online at Internet Law & Regulation

RIAA and Tallie Stubbs Battle it Out in Oklahoma; RIAA Trying to Withdraw "Without Prejudice" So it Won't be Liable for Attorneys Fees

An interesting battle is going on in Oklahoma in Warner v. Stubbs.

Regular readers may recall that in Capitol Records v. Foster, the judge held that the RIAA's discontinuance of the lawsuit "with prejudice" was the same as a win for the defendant, and made her a "prevailing party" eligible for attorneys fees.

When they ran into Marilyn Barringer-Thomson, the same lawyer who was representing Debby Foster, in their next go-round, the Stubbs case, they immediately sought to discontinue the case. In one part of the motion they said it was "with prejudice"; in another part they said "without prejudice".

Apparently mindful that discontinuing "with prejudice" could subject them to liability for attorneys fees in the Stubbs case, they quickly sought to correct their motion to say "without prejudice", and the judge allowed them to make that correction:

Order permitting correction.

Ms. Barringer-Thompson opposes that, saying the RIAA's motion, saying the dismissal has to be "with prejudice".

Here are some of the latest salvoes fired in that ongoing skirmish (the terminonology used in these Oklahoma cases is different than that used by New York lawyers such as myself, so I apologize if I've incorrectly named some or all of the document):

October 1, 2006, Defendant's Objection to Plaintiffs' Reply*
October 10, 2006, Plaintiffs' Response to Defendant's Objection*
October 24, 2006, Defendant's Reply to Plaintiffs' Response*

* Document published online at Internet Law & Regulation

Commentary and discussion:

TechDirt
Ars Technica
Digital Music Weblog
p2pnet.net
digg
Blogger News Network

Other languages:

Ultimativ-Board
gulli

Tuesday, October 24, 2006

RIAA Balks at Producing Report of Hard Drive Inspection in UMG v. Lindor

Two and a half months after it made a "mirror image" of the hard drive of the computer in Marie Lindor's apartment, the RIAA has yet to produce its forensic expert's report on his inspection of the drive.

Although initially saying they would get the report to Ms. Lindor's lawyers by October 12th, the RIAA's lawyers now claim that the only deadline they need to concern themselves with is the December 31st discovery cutoff.

Ms. Lindor's lawyers have asked the Magistrate Judge to sanction the plaintiffs:

October 23, Letter of Ray Beckerman (Hard Drive Report)*
Attachments to October 23, Letter of Ray Beckerman (Hard Drive Report)*

* Document published online at Internet Law & Regulation

Commentary and discussion:
Digital Music Weblog
p2pnet.net

Deposition of UMG Employee JoAn Cho Now Available Online

The transcript of the September 7, 2006, deposition of UMG in-house lawyer JoAn Cho, in UMG v. Lindor is now available online:

Transcript of September 7, 2006, deposition of JoAn Cho*

* Document published online at Internet Law & Regulation

Sunday, October 22, 2006

RIAA's Contention that its MediaSentry Agreements are "Privileged" is Challenged by Marie Lindor

In UMG v. Lindor, defendant Marie Lindor has challenged the RIAA's attempt to designate its contracts with MediaSentry, Inc., as "privileged" under the doctrines of "attorney client privilege" and "work product privilege":

Declaration of Ray Beckerman dated October 22, 2006, in opposition to RIAA motion for protective order*
Defendant's Memorandum of Law in opposition to RIAA motion for protective order*

Copies of the RIAA's September 27th protective order motion, to which Ms. Lindor's attorneys are responding, may be accessed here

* Document published online at Internet Law & Regulation

Commentary and discussion:
p2pnet.net

Wednesday, October 18, 2006

Digital Music News reports: eMusic picks up ground in Europe

Report by Digital Music News:

eMusic Gains Early Ground in Europe, Grabs 20,000 Subs

Just two months after launching in Europe, independent music download store eMusic has grabbed a healthy 20,000 subscribers. The company beta launched in the region in early August, and officially announced its arrival the following month. The new subscriber base has purchased a total of two million downloads, according to the company.....

Complete article

Link to eMusic

Tuesday, October 17, 2006

RIAA Claims to Have Brought 8000 New Cases Worldwide

BBC reports that the RIAA is claiming to have commenced 8000 new cases worldwide, adding to the 31,000 it claims to have already commenced:

http://news.bbc.co.uk/2/hi/technology/6058912.stm

Monday, October 16, 2006

Case Management Schedule Set in Arista v. Lime Wire

A case management order has been signed in Arista v. Lime Wire.

The court fixed July 13, 2007, as the closing date for discovery, and October 10, 2007, as the day for final briefs in connection with summary judgment motions.

October 16, 2006, Case Management Order*

* Document published online at Internet Law & Regulation

Discussion & commentary:

p2pnet.net
Digital Music Weblog

Table of Cases

Friday, October 13, 2006

RIAA Drops Wilke Case in Chicago

We have just learned that the RIAA has dropped the Wilke case in Chicago.

Stipulation of Dismissal with Prejudice*

This is the case in which Mr. Wilke moved for summary judgment, stating that:

1. He is not "Paule Wilke" which is the name he was sued under.
2. He has never possessed on his computer any of the songs listed in exhibit A [the list of songs the RIAA's investigator downloaded] He only had a few of the songs from exhibit B [the screenshot] on his computer, and those were from legally purchased CD's owned by Mr. Wilke.
3. He has never used any "online media distribution system" to download, distribute, or make available for distribution, any of plaintiffs' copyrighted recordings.

The RIAA's initial response to the summary judgment motion, prior to the dismissal, had been to cross-move for discovery, indicating that it did not have enough evidence with which to defeat Mr. Wilke's summary judgment motion.

Mr. Wilke was represented by Saper Law Offices of Chicago, Illinois.

In response to our question as to whether any money had changed hands in connection with the settlement, Mr. Wilke's attorneys responded: "Plaintiffs, the RIAA, and SBC worked cooperatively and amicably to resolve this dispute."

p2pnet.net had called the Wilke case yet another RIAA blunder.

Commentary and discussion:
(English language)
Slashdot
p2pnet.net
Ars Technica
The Register
Digital Music News
digg
Slyck
TG Daily
(Other languages)
Heise Online

* Document published online at Internet Law & Regulation

Table of Cases

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