Recording Industry vs The People: Arista v. Usenet complaint available online

Wednesday, October 17, 2007

Arista v. Usenet complaint available online

Although it's not directly on topic, we will provide occasional coverage of the RIAA's secondary infringement case against Usenet.com, since it may be of interest to our readers.

Copies of the complaint are available online.

Complaint in Arista v. Usenet (Hosted by Wired.com)
(Alternate Link)(Hosted by Internet Law & Regulation)*

* Document published online at Internet Law & Regulation

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

3 comments:

jbrooks said...: Well, I disagree, this case is definately on topic, Recording Industry Against the People. Also, perhaps not of interest to Ray Beckerman, the complaint alleges that Usenet.com is a primary infringer as well as a secondary infringer. The complaint uses most of its space alleging primary infringment, not secondary or vicarious infringment.

As a point of clarification, the Defendant is usenet.com, and NOT usenet. The Usenet is a basic component of the original internet, not owned by anybody but subject to the protocols and governance of an international governing body, and NOT the defendant in this suit.

After having visited the usenet.com website, it is clear that usenet.com is acting more in the vein of internet service provider for newsgroups than anything else. In that vein, they should probably invoke the DMCA safe harbor provisions. Assuming the RIAA, their lackeys, and their ilk have not sent DMCA takedown notices for specific alleged infringing content, then this suit should be dismissed out of hand under the DMCA. Assuming the RIAA et al have in fact sent DMCA takedown notices, presumably the Usenet.com would not be so stupid as to not have acted on those notices. Hopefully they can prove they have complied for the majority of any notices they have received.

The major point to make is that usenet news on the internet is a much bigger entity than whatever portion of usenet news, certain posts and downloads from any or all of the newsgroups, might be used by individuals either uploading or downloading copyrighted content without authorization from the copyright owner. With out question there are significant non-infringing uses of the usenet. The proper action for the RIAA is to submit the DMCA takedown notices for alleged infringing content, and not to bring suit in federal court. In reading the complaint, I found no allegations that usenet.com failed to remove infringing content in response to a takedown notice.

The other point would be that usenet.com is not the entire usenet, of the internet. Assuming arguendo that usenet.com is either a direct infringer or vicarious infringer because of the existence of the usenet on the internet, how can you allocate any damages without joining the entire usenet and every entity participating ( every ISP worldwide) in order to allocat pro rata responsibility? There are hundreds of operations similar to usenet.com offering access ot usenet newsgroups on the internet including nearly every ISP.; October 17, 2007 at 8:53:00 PM EDT
Alter_Fritz said...: I'm feeling a bit guilty now;
It seems Jenner and Block's Bart used my Road Map to find stuff they present in the exhibits that is ca. 4 years (the google groups posting) or even 8 years old (the FAQ).

Me wonders if Mr. Bart hasn't read his own Exhibit R or why there isn't any "Exhibit S" that shows at least one of the notices that are required according to your DMCA.

Me further wonders if the RIAA isn't afraid that they will drive with such a publicly suit even more "non-geeky" normal consumers to those alternate means for obtaining their daily dose of product.
Since they themself were to dinosaur-like technophobe to take advantage of the digital distribution channel in the last 7-8 years since Napster and they only start now to come up with means to sell sound quality reduced mp3's for (relatively) high prices while the over 20 year old USENET again shows the leading way! (Exhibit D p95). Which is: lossless digital quality without "annoyance factor" (DRM) for a fair price. ($18,95 for "all you can eat of product" seems fair. Too bad it isn't the labels who get that money since they don't set up such a system like the defendant had done on their own to cash in on customers that are willing to pay the labels if they only would provide their catalogue to consumer in a userfriendly way!)

Thank god nowadays those that are the real creators of the product -the artists- are embracing digital distribution technology on their own! Radiohead and Co. for the win and "devastation" of the greedy obsolete labels.

It seems those in charge in the labels are still unable to grasp market reality and refuse to see how they could make billions over billions with all their huge backcatalogue. *insert Nelson Munz quote here*; October 17, 2007 at 9:32:00 PM EDT
raybeckerman said...: Glad you find it on topic, jbrooks.

Alter, these record companies are history.; October 18, 2007 at 12:02:00 AM 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