Recording Industry vs The People: May 2007

Wednesday, May 30, 2007

More Argument on Motion to Dismiss Counterclaims in Maverick v. Chowdhury

In Maverick v. Chowdhury, the RIAA claims that Judge Brieant's decision in Lava Amurao was incorrectly transcribed:

May 29, 2007, Letter of Richard J. Guida (Re Motion to Dismiss Counterclaims Conference Request)*
May 30, 2007, Letter of Ray Beckerman (Re Motion to Dismiss Counterclaims Conference Request)*
Exhibit A, Capitol v. Foster, October 5, 2005*
Exhibit B, Warner v. Stubbs, March 13, 2007)*

* Document published online at Internet Law & Regulation

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

Sunday, May 27, 2007

Magistrate Grants Motion for Alternate Manner of Service on Ms. Lindor's Nephew

In UMG v. Lindor, Magistrate Levy has granted the RIAA's motion for leave to serve a subpoena on Ms. Lindor's nephew by an alternative means of service, other than personal service:

Order entered May 25, 2007, Levy, M.J., Granting Leave to Serve Subpoena with Alternate Means of Service*

* Document published online at Internet Law & Regulation

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New RIAA Motion to Dismiss Counterclaims Planned in Elektra v. Torres in Brooklyn

In Elektra v. Torres in Brooklyn, the RIAA has indicated an intention to make a motion to dismiss defenfant's counterclaims for attorneys fees, declaratory judgment, antitrust law violation, and copright misuse:

May 25, 2007, Letter of Richard Guida (Re Motion to Dismiss Counterclaims)*
May 25, 2007, Letter of Ray Beckerman (Re Motion to Dismiss Counterclaims)*

* Document published online at Internet Law & Regulation

Houston, Texas, Judge Grants RIAA Motion to Dismiss Counterclaims for Copyright Misuse and Declaratory Judgment

In Atlantic v. DeMassi, in Houston, Texas, the judge granted the RIAA's motion to dismiss defendant's counterclaims for declaratory judgment and copyright misuse. The counterclaims were very similar to the counterclaims which the courts refused to dismiss in Atlantic v. Shutovsky and Lava v. Amurao.

May 21, 2007, Order Dismissing Counterclaims for Declaratory Judgment and Copyright Misuse*

* Document published online at Internet Law & Regulation

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Wednesday, May 23, 2007

RIAA Tries to Make New Submission in opposition to UMG v. Lindor In Limine Motion

In UMG v. Lindor, the RIAA has attempted to make a new submission in opposition to the defendant's in limine motion:

May 18, 2007, Letter of Richard Gabriel*
May 18, 2007, Letter of Ray Beckerman*

* Document published online at Internet Law & Regulation

The Battle of Athens, Ohio, Begins; Ohio Law Firm Takes Up Cause of Students Against the RIAA

There have been numerous press reports that Ohio University, in Athens, Ohio, has been targeted by the RIAA.

Now the battle is joined.

The RIAA has filed its usual ex parte John Doe lawsuits.

But this time it has encountered an adversary.

Joseph A. Hazelbaker and Jonathan Sowash of Sowash, Carson & Ferrier, an Athens, Ohio, law firm, have taken up the cause of Ohio University students, and have served notice on the University that they expect the University to protect its students' rights, and will hold the University accountable if it does not.

Complaint in Arista v. Does 1-15*
Complaint in Capitol v. Does 1-10*
May 23, 2007, Letter of Joseph Hazelbaker to Ohio University*

* Document published online at Internet Law & Regulation

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Lindor Renews Request for Discovery Into Copyright Misuse

In UMG v. Lindor, Ms. Lindor has renewed her request into pretrial discovery relating to her defense of "copyright misuse".

She initially made the requests on March 9, 2006, in her interrogatories and document requests. Magistrate Robert M. Levy ruled, on July 25, 2006, that she could not have the requested information.

Today, citing the decision in Lava v. Amurao upholding a similar copyright misuse counterclaim, Ms. Lindor renewed her request for an order compelling discovery on this issue.

May 23, 2007, Letter of Ray Beckerman to Magistrate Judge Robert M. Levy (Discovery on Copyright Misuse)*
Exhibit to Letter -- May 23, 2007, Order of Judge Charles L. Brieant in Lava v. Amurao*

* Document published online at Internet Law & Regulation

Chowdhury Brings Lava v. Amurao Decision to Judge Trager's Attention

In Maverick v. Chowdhury, where the RIAA has indicated an intention of making a motion to dismiss counterclaims, Mr. Chowdhury's lawyers have brought to Judge Trager's attention the decision of Judge Brieant, in the Southern District, rejecting a virtually identical motion against virtually identical counterclaims:

May 23, 2007, Letter of Ray Beckerman to Judge Trager*
Exhibit to Letter -- May 23, 2007, Order of Judge Charles L. Brieant in Lava v. Amurao*

* Document published online at Internet Law & Regulation

Judge Rejects RIAA Motion in Lava v. Amurao; Counterclaims for Copyright Misuse and Declaratory Judgment Stand

In Lava v. Amurao, pending in the Southern District of New York, in White Plains, Judge Charles L. Brieant has entered an order denying the RIAA's motion to dismiss counterclaims for (a) declaratory judgment of non-infringement and (b) copyright misuse.

The Judge also granted the motion of the Electronic Frontier Foundation for leave to file an amicus curiae brief.

The copyright misuse counterclaim calls for the plaintiffs to forfeit their copyrights in the songs which form the basis for their suit, on the ground that they are "competitors in the business of recorded music.....[and] are a cartel acting collusively in violation of the antitrust laws and public policy, by litigating and settling all cases similar to this one together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in an identical manner and through common lawyers..... Such actions represent an attempt....to secure for themselves rights far exceeding those provided by copyright laws......Such acts constitute misuse of copyrights, and lead to a forfeiture of the exclusive rights.....".

May 23, 2007, Order of Hon. Charles L. Brieant, Denying RIAA's Motion to Dismiss Counterclaims for Declaratory Judgment and Copyright Misuse, and Granting EFF Leave to File Amicus Curiae Brief*

Mr. Amurao is represented by Richard A. Altman of Manhattan.

* Document published online at Internet Law & Regulation

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Tuesday, May 22, 2007

RIAA Keeps Sending Letters in Maverick v. Chowdhury

In Maverick v. Chowdhury the RIAA continues to send letters indicating they are "willing to consider any information", this time taking "great umbrage" at being called liars in Mr. Chowdhury's counsel's previous letter:

May 15, 2007, Letter of Brian E. Moran*
May 22, 2007, Letter of Ray Beckerman*

* Document published online at Internet Law & Regulation

RIAA Files Reply Papers in Atlantic v. Boggs, Arguing for Dismissal of Counterclaims

In Atlantic v. Boggs, in Corpus Christi, Texas, the RIAA has filed reply papers further arguing that the defendants' counterclaims should be dismissed:

Reply Memorandum of Law in Support of Motion to Dismiss Counterclaims*

* Document published online at Internet Law & Regulation

Thursday, May 17, 2007

Lindor Disputes RIAA Lawyers on Expert Witness's "Reliability"

In UMG v. Lindor, Ms. Lindor has filed reply papers refuting the arguments of the RIAA lawyer that the testimony of the RIAA's expert witness, Dr. Doug Jacobson, should be admissible at trial, despite Ms. Lindor's motion to exclude his testimony as inadmissible:

May 17,2007, Letter of Ray Beckerman to Judges David G. Trager and Robert M. Levy (In Limine Motion to Exclude Trial Testimony of RIAA expert)*

* Document published online at Internet Law & Regulation

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In Elektra v. Santangelo II, Judge Denies RIAA Application to Compel Examination of Judgment Debtor

In Elektra v. Santangelo II, the White Plains, New York, case against two (2) of Patti Santangelo's children in which the RIAA obtained a default judgment against Patti's daughter Michelle, the Court has denied the RIAA's motion to compel a judgment enforcement deposition of the defendant.

It is our understanding that a pretrial conference is scheduled for July 13, 2007, that under the court rules Ms. Santangelo cannot make a motion to vacate her default judgment until then, and that Ms. Santangelo is intending to make a motion to vacate her default judgment, which if granted would moot the RIAA's "judgment enforcement" attempts.

May 15, 2007, Memo endorsed Order denying application for judgment debtor exam*

* Document published online at Internet Law & Regulation

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In UMG v. Lindor Parties Stipulate to Procedure for Determining Wholesale Download Prices for Purposes of Unconstitutionality Issue

In UMG v. Lindor, some six (6) months after the plaintiffs were ordered to provide defendant with "all relevant documents" concerning the wholesale prices of single song downloads, the parties were able to reach agreement on a stipulated procedure, which dispenses with the need for the RIAA to produce documents, for the determination of the wholesale download prices for purposes of determining the issue of the constitutionality of plaintiffs' $750-per-file statutory damages theory.

Under the procedure agreed upon, the RIAA will provide Ms. Lindor's counsel with declarations describing the price range of wholesale downloads; the declarations will be confidential pending further court order; and it will be assumed, for purposes of the litigation only, that the low end of the price range is the wholesale per-song price:

Stipulations for Determination of Wholesale Download Prices*
Order approving stipulations*

* Document published online at Internet Law & Regulation

Wednesday, May 16, 2007

Stanford Adopts Policy: Assume RIAA is Right

We've recently received a copy of Stanford University's new DMCA policy, which basically assumes that any complaint from the RIAA must be true:

May 11, 2007, DMCA Policy Statement, Stanford University*

* Document published online at Internet Law & Regulation

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"Mistaken Goal: Where Student Affairs & Technology Meet"

Tuesday, May 15, 2007

RIAA Backs Down in Mississippi case, Elektra v. Dennis

The RIAA has backed down in a Jackson, Mississippi, case, Elektra v. Dennis. In response to the defendant's dismissal and summary judgment motion, filed in March, the RIAA has filed responsive papers indicating that it does not object to the case being dismissed "without prejudice", and without any attorneys fee award.

Plaintiffs' Memorandum of Law Consenting to Dismissal "Without Prejudice"*

Mr. Dennis is represented by Karen Spencer of Spencer & Spencer in Jackson, Mississippi.

* Document published online at Internet Law & Regulation

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Monday, May 14, 2007

Prof. Johan Pouwelse Agrees To Take on the RIAA's Expert

In UMG v. Lindor, the case in which the RIAA's expert -- Dr. Doug Jacobson -- was deposed on February 23, 2007, Ms. Lindor has retained her own expert: Prof. Johan Pouwelse, An Assistant Professor in the Parallel and Distributed Systems Group at Delft University of Technology, in the Netherlands. It was Prof. Pouwelse's testimony in Foundation v. UPC Nederland in the Netherlands, analyzing the RIAA's MediaSentry investigation, which caused the courts of that country to decline the request by the RIAA's sister organization for the ISP's in that country to turn over the names and addresses of their subscribers.

May 14, 2007, Letter of Ray Beckerman designation Prof. Johan Pouwelse as Expert Witness*
Curriculum vitae of Prof. Johan Pouwelse*

* Document published online at Internet Law & Regulation

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RIAA Responds to Lindor motion to exclude expert; says "everyone in his field proceeds the same way he did"

The RIAA has challenged the defendant's motion to exclude RIAA "expert witness" Dr. Doug Jacobson in UMG v. Lindor, arguing that "everyone in his field proceeds the same way he did":

May 14, 2007, Letter of Richard L. Gabriel, In Opposition to In Limine Motion*

* Document published online at Internet Law & Regulation

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Friday, May 11, 2007

New Counterclaims in new South Carolina Case, Atlantic v. Njuguna

An answer and counterclaims have been filed in a new Charleston,, South Carolina, case, Atlantic v. Njuguna.

Defendant is counterclaiming for, among other things, Negligence and violation of the South Carolina Unfair Trade Practices Act.

Answer and Counterclaims*

Defendant is represented by Jason Scott Luck of Charleston.

* Document published online at Internet Law & Regulation

Ms. Stubbs Opposes RIAA's "Renewed" Motion to Dismiss Counterclaims

Ms. Stubbs has filed opposition papers to the RIAA's "renewed" motion to dismiss counterclaims in Warner v. Stubbs.

Defendant's Objections to Plaintiffs' Renewed Motion to Dismiss Counterclaims

Defendant is represented by Marilyn Barringer-Thomson, the same attorney who represents Debbie Foster in Capitol v. Foster.

* Document published online at Internet Law & Regulation

Exchange of Letters in Maverick v. Chowdhury as Chowdhury Responds to RIAA "request for proof of innocence"

An exchange of letters took place today in Maverick v. Chowdhury, pending in federal court in Brooklyn:

May 10, 2007, Letter of Brian E. Moran to Ray Beckerman, Requesting Information "supporting defendant's claim of innocence"*
May 11, 2007, Letter of Ray Beckerman to Brian E. Moran, Rejecting Requesting Information "supporting defendant's claim of innocence" and Demanding Withdrawal of Frivolous Case*

* Document published online at Internet Law & Regulation

Thursday, May 10, 2007

RIAA Claims its Case is "Not Frivolous" in Elektra v. Schwartz

In its letter to the Magistrate in Elektra v. Schwartz, which was supposed to consist of referrals to reading matter, the RIAA submitted a lengthy argument to the effect that its case against Ms. Schwartz is "not frivolous":

May 9, 2007, Letter of Richard J. Guida (Submitting Reading Materials for Guardian Ad Litem)*
May 10, 2007, Letter of Ray Beckerman Moving to Strike Letter of Richard J. Guida*
May 10, 2007, Order Denying Motion to Strike Guida May 10th Letter*

* Document published online at Internet Law & Regulation

Wednesday, May 09, 2007

RIAA "Reconsideration" Motion and "Reasonableness Inquiry" Cause Capitol v. Foster Fees to Double From $55k to $114k

The RIAA's challenges to Judge Lee R. West's order awarding the defendant attorneys fees in Capitol v. Foster and to the "reasonableness" of Ms. Foster's attorneys' fees have caused the fees to more than double, from $55,000 to $114,000, as evidenced by Ms. Foster's supplemental fee application:

Supplemental Fee Application*
Declaration in Support of Supplemental Fee Application*

* Document published online at Internet Law & Regulation

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Tuesday, May 08, 2007

Schwartz Counsel Refer Guardian Ad Litem to MGM v. Grokster, Capitol v. Foster, and Expert Witness Deposition in Lindor

In Elektra v. Schwartz, responding to the Magistrate's order to provide the Guardian Ad Litem with recommended reading materials, Ms. Schwartz's counsel referred him to MGM v. Grokster, two of the decisions in Capitol v. Foster, and the in limine motion in UMG v. Lindor:

May 7, 2007, Letter of Lisa J. Borodkin (Guardian Ad Litem Reading Materials)*
February 6, 2007, Decision in Capitol v. Foster*
April 23, 2007, Decision in Capitol v. Foster*
In Limine Motion in UMG v. Lindor*

* Document published online at Internet Law & Regulation

RIAA Seeks to Make Motion to Dismiss Counterclaims in Maverick v. Chowdhury

In Maverick v. Chowdhury, in Brooklyn, the RIAA has indicated it intends to make a motion to dismiss Mr. Chowdhury's counterclaims for attorneys fees, a declaratory judgment, antitrust violations, and copyright misuse:

May 7, 2007, Letter of Richard Guida re Motion to Dismiss Counterclaims*
May 8, 2007, Letter of Ray Beckerman re Motion to Dismiss Counterclaims*

* 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