Recording Industry vs The People: January 2007

Wednesday, January 31, 2007

Patti Santangelo's 16-year old son Robert Counterclaims against the RIAA for "failure to warn"

In the case we have dubbed Elektra v. Santangelo II, Patti Santangelo's 16-year-old son Robert has gone on the offensive, filing a counterclaim against the record labels:

Answer and Counterclaim*
Exhibit A to Answer and Counterclaim*
Exhibit B to Answer and Counterclaim*

Editor's note: Query: Since no guardian ad litem has been appointed for this 16-year-old child, aren't both the RIAA's commencement of the suit, and the answer and counterclaim filed on the child's behalf, both nullities? Just asking.
-R.B.

* Document published online at Internet Law & Regulation

Commentary & discussion:

English language:
p2pnet.net
digg.com
Download Squad
Ars Technica
Associated Press
The Inquirer
Post an Apology
Technorati
Blogger News Network
Slashdot
p2p File Sharing

Other languages:
Heise Online

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

Friday, January 26, 2007

p2pnet reports: Judge from BMG v. Doe appointed head of CRTC

Jon Newton at p2pnet.net reports that Judge Konrad von Finckenstein, the excellent Canadian judge who wrote the lower court decision in BMG v. Doe (Canada), shutting down the RIAA's attempt to do in Canada what it has been doing in the U.S., has been appointed head of the Canadian Radio-Television & Telecommunications Commission.

Sounds like good news for Canada.

Complete article

Elektra v. Barker dismissal motion argued; parties now await decision

Tenise Barker's motion to dismiss the complaint in Elektra v. Barker was argued today (Friday, January 26, 2007) in Manhattan federal court, before Hon. Kenneth M. Karas.

After hearing both sides, the judge reserved decision.

None of the amici curiae asked to participate in the argument.

If you would like to order a transcript of the argument, here is a transcript request form:

Docket Entry. Oral Argument held. Decision reserved. Hon. Kenneth M. Karas*
Elektra v. Barker Jan. 26, 2007, argument, transcript request form*

* Document published online at Internet Law & Regulation.

Commentary & discussion:

English language:
p2pnet.net
Silicon Valley Media Law Blog
Trademark Blog

Other languages:

Heise Online

Wednesday, January 24, 2007

Michelle Santangelo's lawyer makes motion to be admitted pro hac vice

In Elektra v. Santangelo II (the case against two of Patti Santangelo's children), the lawyer for Michelle Santangelo, Jordan Glass, has made a motion to be admitted to the Court pro hac vice (for that particular case):

Motion for pro hac vice admission*

Presumably this is the first step in making a motion to vacate the default judgment which the RIAA previously entered against his client.

* Document published online at Internet Law & Regulation

Transcripts of November 30th proceedings in UMG v. Lindor filed

Transcripts of the November 30th court proceedings in UMG v. Lindor, including the oral argument of the RIAA's protective order motion regarding the MediaSentry agreements with the RIAA, the "in camera" (ex parte) discussion between the Magistrate and the RIAA lawyers which took place afterwards, and the conference regarding the RIAA's attempt to subpoena the computer and listening devices of Ms. Lindor's son and nephew, have been filed:

Docket entry regarding transcript of conference regarding compulsion of disclosure by defendant's son and nephew and oral argument of MediaSentry protective order motion*
Docket entry regarding transcript of "in camera" discussion between Magistrate and RIAA lawyers after oral argument of MediaSentry protective order motion*

Transcripts, unlike other court papers, are not available for free but must be purchased.

* Document published online at Internet Law & Regulation

Monday, January 22, 2007

Hollywood Reporter article on Elektra v. Barker, case scheduled for argument Friday January 26th

Elektra v. Barker, in which the RIAA will be making its "making available" argument, is scheduled for argument Friday, January 26th. See Hollywood Reporter ESQ article.

In BMG v. Does 1-4, California "John Doe" case, last summer, Court rejected joinder of Does 2-4, dismissed as to them

In a California "John Doe" case, BMG v. Does 1-4, the Court refused to accept joinder of the four John Does, and dismissed as to John Does 2-4:

August 1, 2006, decision*

In its decision, the Court also noted the requirement of producing concrete evidence of a prima facie case, and ordered the plaintiffs to produce copies of the copyright registrations allegedly infringed by John Doe number 1.

After receiving plaintiffs' new papers, including the copyright registations, the Court subsequently granted the ex parte discovery order the RIAA was seeking, but only as to John Doe number 1:

November 30, 2006, decision*

This was a totally ex parte case. The defendants never appeared.

* Document published online at Internet Law & Regulation

UMG v. Hightower, case in Houston, Texas

We are today initiating coverage of a case in Houston, Texas, UMG v. Hightower.

The lawyer representing the defendant, June Hightower, is J. Goodwille Pierre, an intellectual property lawyer and member of Walker, James, Dhingra & Pierre, in Houston.

Defendant's interrogatory answers*

* Document published online at Internet Law & Regulation

Court denies Ms. Lindor's son's request for expert witess fees; Maverick v. Goldshteyn case settled

UMG V. Lindor

At a conference held on January 17, 2007, in UMG v. Lindor, the Magistrate denied Ms. Lindor's son's request for expert witness fees in connection with the plaintiffs' motion to compel, in support of which plaintiffs had appended a declaration of their expert witness, Dr. Doug Jacobson:

Docket entry of January 17, 2007, conference*

Subsequent to the conference, a list was submitted by Ms. Lindor's attorneys of the outstanding discovery motions:

January 20, 2007, Letter of Ray Beckerman to Magistrate Levy*

Maverick v. Goldshetyn

That same day, in a separate settlement conference, in Maverick v. Goldshteyn, the Goldshteyn was settled:

Docket entry of January 17, 2007, conference*

Both cases are in the US District Court for the Eastern District of New York, in Brooklyn, where all RIAA cases are assigned to District Court Judge Trager and Magistrate Judge Levy.

* Document published online at Internet Law & Regulation

Friday, January 19, 2007

Lime Wire Files Papers Defending Antitrust Counterclaims

In Arista v. LimeWire, the RIAA's copyright case against LimeWire, in which LimeWire has interposed counterclaims against the record labels for antitrust violations and the RIAA has sought to dismiss the counterclaims, LimeWire has filed papers opposing the RIAA's motion:

Defendants' Memorandum of Law in Opposition to Motion to Dismiss Counterclaims*

* Document published online at Internet Law & Regulation

p2pnet.net Website Up for Sale

We have just learned that the excellent web site, p2pnet.net, is up for sale, for financial reasons.

Here are the details: http://p2pnet.net/story/11057

We hope that the site will be able to continue its excellent coverage and commentary of news in the p2p field.

* Document published online at Internet Law & Regulation

Wednesday, January 17, 2007

For People Who are Curious as to What an RIAA Settlement Looks Like, Here is a Judgment Based on a Settlement

For people who are curious as to what an RIAA "settlement" looks like, here is a typical RIAA judgment based on a settlement stipulation:

Judgment Based on Settlement Stipulation in Motown v. Lisberg*

Thanks to attorney Joe Singleton for sending it along.

* Document published online at Internet Law & Regulation

Tuesday, January 16, 2007

Discovery Dispute in Brooklyn in Maverick v. Becker; RIAA Resists SONY v. Arellanes protective order for hard drive inspection

In a case which we have not previously covered, Maverick v. Becker, in Brooklyn, the RIAA is strenuously opposing the imposition of a protective order similar to that imposed in SONY v. Arellanes. Letters from Ms. Becker's lawyer, Anthony J. Genovesi, Jr., of Whitestone, Queens, New York, and the RIAA's lawyers, are as follows:

November 22, 2006, Letter of Anthony J. Genovesi, Jr.*
December 14, 2006, Letter of Anthony J. Genovesi, Jr.*
December 20, 2006, Letter of Brian E. Moran*

* Document published online at Internet Law & Regulation

Judge in Atlantic v. Andersen orders plaintiffs to produce detailed hard drive expert witness report, denies pending motions, extends deadlines

In the Oregon case of Atlantic v. Andersen, the judge has entered an order
-denying defendant's motion for sanctions;
-extending the deadline for completion of discovery to March 15, 2007,
-extending the deadline for dispositive motions (i.e. motions for dismissal or summary judgment) to April 13, 2007,
-directing that defendant's deposition would not be taken until after the exchange of written discovery,
-denying plaintiffs' motion to dismiss counterclaims without prejudice,
-denying defendant's motion to dismiss plaintiff's claims without prejudice,
-striking defendant's amended counterclaim and allowing defendant 20 days to file another amended pleading or motion for leave to file an amended pleading, and
-directing plaintiffs to produce an expert witness's report regarding the hard drive inspection, including the expert's identity, qualifications, methodology, investigation chronology, notes, records, raw data, and informed opinion and conclusions of the investigation.

December 13, 2006, Order*

* Document published online at Internet Law & Regulation

New Contested Case in Manhattan: Atlantic v. Shutovsky

A new contested case has been brought in Manhattan, Atlantic v. Shutovsky.

Answer and Counterclaims in Atlantic v. Shutovsky*

* Document published online at Internet Law & Regulation

Mr. Shutovsky is represented by Richard A. Altman, of Manhattan.

Wednesday, January 10, 2007

Default Judgment Entered Against Patti Santangelo's Daughter

A default judgment has been entered against Patti Santangelo's daughter, Michelle Santangelo, in Elektra v. Michelle Santangelo and Robert Santangelo, Jr. ("Elektra v. Santangelo II"):

January 10, 2007, Default Judgment*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet

RIAA Cites Child Pornography Case to Judge in Elektra v. Barker; Barker Says Case is Irrelevant

In Elektra v. Barker, in which oral argument of Ms. Barker's dismissal motion has been scheduled for January 26th, the RIAA has cited to Judge Karas a child pornography case which it claims is relevant to the pending dismissal motion. Ms. Barker's attorneys argued to the Judge that the case is totally irrelevant:

January 9, 2007, Letter of Richard L. Gabriel, with copy of US v. Shaffer*
January 10, 2007, Letter of Morlan Ty Rogers, with copy of RIAA's November 15, 2004, testimony to FTC P2P File Sharing Workship*

* Document published online at Internet Law & Regulation

Commentary & discussion:

TechDirt
p2pnet.net

Monday, January 08, 2007

New Contested Case in South Carolina, SONY v. DeMaria

There is a new contested case in South Carolina, SONY v. DeMaria. A copy of Ms. DeMaria's answer is as follows:

Answer in SONY v. DeMaria*

Ms. DeMaria is represented by Jason Scott Luck, of Charleston, South Carolina.

* Document published online at Internet Law & Regulation

Commentary & discussion:

Digital Music Weblog

Thursday, January 04, 2007

Voluntary Dismissals in Michigan and in Washington

The RIAA has recently voluntarily dismissed claims in Michigan and in Washington.

In the Michigan case, Warner v. Pidgeon, the RIAA discontinued the entire case so that it could pursue a new case against the defendant's ex-husband. The discontinuance was "with prejudice". Ms. Pidgeon was represented by John Hermann of Berkley, Michigan.

In the Washington case, Interscope v. Leadbetter, the RIAA sought to discontinue its claim against defendant, but amend the complaint to add a claim against the defendant's fiance. The Court, however, denied the amendment, so that the RIAA would have to bring a new action against the fiance. The Court indicated that an award of attorneys fees and costs was possible, and left the question open. Ms. Leadbetter is represented by Lory Lybeck of Seattle, Washington.

Warner v. Pidgeon, Stipulation of Dismissal*

Interscope v. Leadbetter, Order & Decision Partially Granting Dismissal and Denying Amendment*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net

Supposedly Fighting to Keep 70-cents-per-download price "confidential", RIAA files court papers admitting 70-cents is "in the correct range"

Ironically, as the RIAA battles on in its supposed struggle to keep its 70-cents-per-download wholesale price "confidential", in UMG v. Lindor, it has publicly filed court papers, in a discovery dispute before Magistrate Judge Robert M. Levy, admitting that the 70-cents-per-download price is "in the correct range" (See Richard Gabriel Letter, Exhibit A, 7th page) and that "the actual numbers are in the range that you have suggested [approximately 70 cents per download]" (Richard Gabriel Letter, Exhibit A, 6th page):

January 3, 2007, Letter of Richard L. Gabriel (Disclosure of Wholesale Download Prices)*
Exhibit A to Letter of Richard L. Gabriel*
January 3, 2007, Letter of Ray Beckerman responding to Gabriel letter (Disclosure of Wholesale Download Prices)*
Exhibit A to Letter of Ray Beckerman*
Exhibit B to Letter of Ray Beckerman*
Exhibit C to Letter of Ray Beckerman*
January 4, 2007, Letter of Richard Gabriel*
January 4, 2007, Letter of Ray Beckerman*

* Document published online at Internet Law & Regulation

Commentary & discussion:

(English language:)

Ars Technica
Slashdot
Hard OCP
Tech Spot
Daily Kos

(Other languages:)

Heise Online

Wednesday, January 03, 2007

Voluntary Dismissal Case Last January in California, Warner v. Maravilla

We have recently learned of a dismissal in California last January, in Warner v. Maravilla, in the Central District of California. Mr. Maravilla made a motion to dismiss. The RIAA eventually discontinued the case, after having discovered that the ISP had named the wrong person.

Motion to dismiss complaint*
Defendant's Request for Judicial Notice*
Plaintiffs' Notice of Voluntary Dismissal*

Mr. Maravilla was represented by Joseph W. Singleton of Beverly Hills, California.

* Document published online at Internet Law & Regulation

Tuesday, January 02, 2007

RIAA Wants Wholesale Pricing Information to be Confidential in UMG v. Lindor

A new discovery dispute has erupted in UMG v. Lindor: the RIAA is refusing to comply with Magistrate Judge Levy's order directing them to turn over "all relevant documents" concerning their wholesale prices for downloads unless Ms. Lindor's attorneys agree to keep the prices confidential. Ms. Lindor's attorneys are willing to keep the details of the contracts confidential, but not the pricing and volume information, and have submitted a proposed order to the judge to resolve the dispute:

January 2, 2007, Letter of Ray Beckerman to Magistrate Levy*
Proposed Order Governing Production of Wholesale Pricing Documents*

* Document published online at Internet Law & Regulation

Commentary & discussion:

(English language:)

p2pnet.net
TechDirt
Ars Technica
Digital Music Weblog
PC Pro

(Other languages:)

Heise Online

Ms. Lindor Challenges RIAA's Attempt to Designate MediaSentry's Tom Mizzone as "fact witness" rather than "expert witness"

In further opposition to the RIAA's protective order motion in UMG_v_Lindor, in which the RIAA has argued that MediaSentry's witness Tom Mizzone is a "fact witness" rather than an "expert" witness, Ms. Lindor's attorneys have brought to Magistrate Judge Levy's attention a recent decision of the United States Court of Appeals for the Sixth Circuit, USA v. Ganier, 468 F. 3d 920 (6th Cir. Nov. 15, 2006), in which a similar argument had been made and rejected:

January 2, 2007, Letter of Ray Beckerman to Magistrate Robert M. Levy, calling attention of court to USA v. Ganier, 468 F. 3d 920 (6th Cir. Nov. 15, 2006) (MediaSentry protective order motion)*

* Document published online at Internet Law & Regulation

US v. Ganier, Slip Opinion, November 15, 2006*
US v. Ganier, Defendant's Brief*

Monday, January 01, 2007

Elektra v. Barker Scheduled for Argument January 26, 2007, at 2:15 P.M.

Just a reminder that the oral argument of the dismissal motion in Elektra v. Barker, before Judge Kenneth M. Karas, is scheduled for Friday, January 26, 2007, at 2:15 P.M.

This is the case in which amicus briefs were filed by the Motion Picture Association of America (MPAA), the Electronic Frontier Foundation (EFF), the U.S. Internet Industry Association (USIIA), and the Computer & Communications Industry Association (CCIA), and a Statement of Interest was filed by the U.S. Department of Justice (USDJ).

Defendant Tenise Barker moved to dismiss the complaint on the ground that neither downloading nor uploading had been alleged sufficiently to give her notice of what she was being accused of, and on the further ground that merely "making available for distribution" was not a copyright infringement at all. The RIAA and MPAA argued that merely "making available" was indeed a copyright infringement. Defendant, CCIA, and USIIA argued that it was not.

EFF argued that intangible computer network transmissions cannot be "distributions" within the meaning of the Copyright Act. USDJ argued that they can be.

The applicable legal documents are as follows:

Complaint*
Exhibit A*
Exhibit B, part 1*
Exhibit B, part 2*
Memorandum of Law in Support of Motion to Dismiss Complaint*
Opposition to Motion to Dismiss Complaint*
Defendant's Reply Memorandum of Law in Support of Motion to Dismiss Complaint*
February 15, 2006, letter of Fred von Lohmann of Electronic Frontier Foundation, requesting permission to serve amicus curiae brief in support of Ms. Barker's dismissal motion*
Amicus Curiae Brief of Electronic Frontier Foundation in Support of Dismissal Motion*
(Alternate link)
Amicus Curiae Brief of Computer & Communications Industry Association and U. S. Internet Industry Association*
Defendant's Memorandum of Law Commenting on Amicus Briefs*
MPAA Amicus brief*
April 4, 2006, letter of Assistant U. S. Attorney Rebecca C. Martin*
"Statement of Interest" of United States Department of Justice*
Memorandum of Law of Defendant Tenise Barker in Response to Statement of Interest of United States of America*

* Document published online at Internet Law & Regulation

The argument will take place at the newer federal court house, located at 500 Pearl Street, New York, New York, in courtroom 21D on the 21st Floor. Proceedings are open to the public.

Commentary & discussion:

p2pnet.net
Slashdot

New Year Greeting

The New Year has begun, and unfortunately the RIAA's war against ordinary citizens is still here. No amnesties, no pardons, no compromise, no compassion, no reason.

While I fully understand that there needs to be some litigation between the content community and the technology community, in order to define the perimeters of copyright law in the digital age, I really wish the RIAA would pick on defendants its own size, and stop making war on the defenseless.

And if that doesn't happen, I hope the federal judiciary will wake up to the massive fraud that is being perpetrated on the courts, and shut it down.

To all those who are fighting the RIAA I wish you good luck.

To all those helping them, my heartfelt thanks.

And to the RIAA and its lawyers, my wish is: I hope that you can find honest work in the New Year.

-R.B.

* Document published online at Internet Law & Regulation

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