Recording Industry vs The People: EFF Files Amicus Brief in Support of Dawnell Leadbetter's Attorneys Fee Motion in Seattle

Friday, July 06, 2007

EFF Files Amicus Brief in Support of Dawnell Leadbetter's Attorneys Fee Motion in Seattle

The Electronic Frontier Foundation has filed an amicus curiae brief in support of Dawnell Leadbetter's attorneys fee motion in a Seattle case, Interscope v. Leadbetter, arguing that

Unlike many of the innocent who could not afford to do so, Defendant Leadbetter
chose to fight back, exposing Plaintiffs’ shoddy tactics and lack of evidence for what they
were – nothing more than a sham excuse to pressure her into a settlement for legal
violations she did not commit.

Amicus Curiae Brief
(Alternate link)*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net (Original source of this story)
Electronic Frontier Foundation
Kansas City InfoZine

Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

1 comment:

AMD FanBoi said...: "IP Addresses are Often Inadequate Identifiers of Alleged Infringers"

It would be more accurate to say IP addresses are ALWAYS inadequate identifiers. Saying that the IP address always identifies the infringer, is like saying that a telephone number always identifies the criminal of a crime committed by telephone. And nearly all the time a telephone number is much easier to accurately tie to a telephone account than an IP address, which can change by the minute. And even telephone number caller ID reporting is easily spoofed.

The RIAA attempts to cure this fatal defect in every one of their cases in two ways:

1) They attempt to say that even if the person owing the Internet account identified by the IP address (provided that they've correctly identified this person in the first place) is guilty of, if not primary infringement, then secondary, contributory, obstruction, and/or vicarious infringement. The problem is that this is not a recognized copyright crime, much as the RIAA pretends otherwise.

2) They attempt to pressure, through a variety of threats, lies, extortion, and other tactics, the discovered owner of the Internet account identified by the IP address into turning over (i.e. throwing under the bus) someone else – anyone else. Then the RIAA can claim they were vindicated by their pursuit of the wrong person, as necessary to find the right person – not that they ever intend to compensate this wrong person for all the grief they've caused them.

This has to be stopped! And the only apparent methods so far – none yet very successful – have been countersuits for RICO, misuse of copyrights, malicious prosecution, and attorney's fees. Which of this will actually stop the RIAA is yet to be determined.

Also, an IP say little about an actual "physical" location. An IP address presents a "logical" location on many common networks, which doesn't translate to an actual physical address. Internet packets don't need to know your street address in order to be delivered properly. They only need to know which wire to go down.

Unlike a telephone number that's at the end of a wire, if I take my cable modem across to my neighbor's house, or any of the other 252+ houses on my own local loop (this number verified by Comcast as the number of Internet users on my local cable loop) and connect it to their cable, it works just as well as in my own house, since all Comcast does is look for a known MAC address on a known cable loop. So you can't even identify which house a cable modem was running in at the time of the alleged infringement. You can only tie it down to a neighborhood. And anyone else on that loop can identify your own MAC address by monitoring traffic on this neighborhood "party line", and spoof it if they felt the need to do so. Especially at hours when you're unlikely to be using your own modem.

Ray, you should depose the cable company for any of your clients using cable modems on how much they CANNOT detect someone else on the local cable loop using a modem with the same MAC address as your client.

Maybe the EFF could set up a honeypot project just to trap the RIAA and their lousy investigative methods.

And regarding Fogerty factors, (2) the plaintiffs' motivation in bringing the suit. The RIAA's motives are clear that they intend to deter ALL filesharing, by accumulating massive publicity around the suing of a tiny fraction of a single percent of the actual number of current filesharers. As such, they seek to maximize their publicity surrounding each case not to punish an individual for filesharing – a crime they admit in their settlement offers is only worth a few dollars/song at most – but to affect other, non-party, filesharer's actions. This has to be an improper motivation.

And I still insist that the Settlement Support Center must have recordings of all the phone calls they've received, and what they have said to the various people in the course of trying to extort out these settlements. And if they made them and they've destroyed them since, well you where that can lead...; July 6, 2007 at 2:48:00 PM EDT

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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