Recording Industry vs The People: Atlantic v. Boggs Case to be Settled; DOJ Will Not Have to Decide Whether to Intervene

Wednesday, August 01, 2007

Atlantic v. Boggs Case to be Settled; DOJ Will Not Have to Decide Whether to Intervene

In the Corpus Christi, Texas, case, Atlantic v. Boggs, in which the US Department of Justice was contemplating whether or not to intervene on the RIAA's behalf, a notice has been filed in the case, indicating that the the case has been settled, and thus obviating the US Attorney General's dilemma.

Notice of Settlement filed August 1, 2007*

* Document published online at Internet Law & Regulation

Commentary & discussion:

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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

8 comments:

Chris said...: Ray what is the relationship between the ASCAP and the RIAA. The former is now suing bar and restaurant owners for playing their music in their establishments without paying. Here's a link to the article.

http://seattletimes.nwsource.com/html/businesstechnology/2003815486_royalty01.html; August 1, 2007 at 11:55:00 AM EDT
Randy said...: Unfortunately, now we'll never know the details of the settlement.; August 1, 2007 at 12:19:00 PM EDT
Jadeic said...: Follow these links to read about ASCAP and the RIAA.

These organisations both have different roles to play in the serious issue of the protection of artists' rights. Our only quibble here (classic British understatement!) is their often misguided attempts to flatten any opposition to their aging business models that have yet to adapt to the radical changes in the way in which music can now be delivered to you - the consumer. In most cases their actions seem counter to their avowed responsibility to the artist and only benefit their corporate masters - and frankly sometimes even those benefits are hard to discern or comprehend.; August 1, 2007 at 7:33:00 PM EDT
raybeckerman said...: jadeic, i'm surprised at you. Since when has the RIAA been about "artist" rights?; August 1, 2007 at 9:17:00 PM EDT
Jadeic said...: Sorry Ray I keep forgetting that irony is not dead over here...

But seriously - I have been following the exploits of the RIAA and the IFPI over many years and am under no illusions about the prime motivation for both organisations but, way back when, there did seem to be a little more regard shown for the rights of the artist (at least in public statements) than latterly. Both organisations have mutated horribly in direct response to the threats that the internet poses to their comfortable control of the distribution business model. They are doomed - but just don't know it yet! As regards ASCAP they too have belatedly realised they too are under serious threat. Perhaps with a little more credence they are now getting tougher on premises that avoid paying the appropriate license for playing music. I don't say I agree with the law. Again though the response is not appropriate in the face of a threat to their business model. To come up with better answers require creative thought - not one of their strong suits. Remember, these are age old institutions and as such, like oil tankers, take a long time to turn around. At least ASCAP has a slightly better reputation for at least funneling the money they collect back to the artists - after no doubt taking a generous cut to cover overheads.; August 2, 2007 at 7:46:00 AM EDT
raybeckerman said...: Dear jadeic

The RIAA invokes the interests of "artists" only as a PR stunt since the record companies are not sympathetic. Meanwhile the record companies are about ripping artists off, not "protection of artists' rights".

ASCAP is about protecting the rights of song writers, or more likely the companies who've bought those rights. Its campaign against taverns, restaurants, etc., is nothing new... it wants to pressure them into buying an ASCAP blanket license. I've always thought it was kind of unfair and counterproductive, and ultimately unhelpful to the artists, but it's nothing new. ASCAP's new campaign against guitar teaching sites is in my view unfounded legally, as those would appear to be a shining example of fair use.

Even though I think ASCAP is wrong about some things, I'm not going to lump the 2 organizations together. ASCAP is an organization with some credibility and some honor. The RIAA is a gang of thugs.; August 2, 2007 at 10:57:00 AM EDT
jbrooks said...: Did the Trager court notify the Attorney General about the constitutionality challenge in Lindor vs UMG? If so, has the DOJ made a decision whether to intervene?; August 2, 2007 at 12:02:00 PM EDT
Jadeic said...: I could not agree more. I'll try not to be so reticent.

I think that should have sorted out schwammo's original query.; August 2, 2007 at 2:09:00 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