Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.
The RIAA has filed a motion to dismiss the defendants' two (2) counterclaims, one for copyright misuse, the other for breach of duty to warn, in Elektra v. Santangelo II
We have received a copy of the complaint filed with the FTC by the Computer & Communications Industry Association against such content owners as Universal, NBC Universal, the National Football League, Major League Baseball, Dreamworks Studios, and others, for misrepresenting copyright law in their "copyright warnings".
The case is
In the Matter of Misrepresentation of Consumer Fair Use and Related Rights by National Football League, NFL Properties, Inc., NFL Enteprises LLC and Major League Baseball, Major League Baseball Properties, Inc., Major League Baseball Advanced Media, LP and NBC Universal, Inc., Universal Studios, Inc., and Morgan Creek Productions, Inc. and DreamWorks Animation SKG, Inc., DreamWorks LLC, a Viacom property and Harcourt Inc. and Penguin Group (USA), Inc.
The complaint starts off saying:
This complaint concerns the systematic misrepresentation of consumers’ rights to use legally acquired content by certain copyright-holding corporations. These corporations have engaged, and continue to engage in, a nationwide pattern of unfair and deceptive trade practices by misrepresenting consumer rights under copyright law, and in some cases threatening criminal and civil penalties against consumers who choose to exercise statutorily or Constitutionally guaranteed rights. These false representations violate the letter and spirit of the Federal Trade Commission Act’s prohibition against unfair or deceptive acts or practices in or affecting commerce.
and then goes on to provide very specific examples of false and deceptive statements by the content owners, attaching selected examples as exhibits.
Non-pdf versions of the full complaint are available online here at Groklaw (without exhibits) and here at Defend Fair Use (with exhibits).
Came across this great copyright law article on C/Net News. (Tip of the hat to Steve Meyer's DISC & DAT email newsletter for bringing Maura's article to my attention). -R.B.
Perspective: Separating fact from fiction on digital copyrights Qorvis' Maura Corbett says copyright law wasn't intended to serve as a stick for rights holders to wield against the freedom of information. By Maura Corbett Published: August 27, 2007, 4:00 AM PDT
I'll bet you can recite most of the copyright warnings that appear on your screen when you pop in a DVD, or at the end of football game, can't you?
At the very least, we all know that when the warning signs appear, what follows are a few very-important-sounding sentences noting the dire consequences of unauthorized use of what we're about to see. We don't necessarily understand it, but we know it's bad. And if we were to believe what they tell us, discussing Barry Bonds' homeruns around the water cooler would put us all in jail.
Did it ever occur to you that, in many cases, these serious, ubiquitous warnings may not actually be accurate?
..................
.....For example, warnings on many Universal DVDs state, in part, that "any unauthorized exhibition, distribution or copying of this film or any part thereof (including soundtrack) is an infringement of the relevant copyright and will subject the infringer to severe civil and criminal penalties."
This statement is simply untrue--the federal copyright statutes specifically allow unauthorized reproduction for criticism, commentary and other purposes. Just recently, the NFL threatened the media by withholding press credentials for any organization that showed more than 45 seconds of a game.
This is not the way forward. We should not permit rights holders to use copyright law to create new powers for themselves........
Recent reports by Variety and by the Associated Press underscore the potential importance of the class action brought by Tanya Andersen against the RIAA, the record companies, Media Sentry and others, Andersen v. Atlantic.
RIAA faces serious piracy lawsuit Music org's stern policy in jeopardy By WILLIAM TRIPLETT
A lawsuit recently filed against the Recording Industry Assn. of America could ultimately force the org to drop or dramatically change the way it uses its principal weapon in the fight against online piracy, according to experts and observers.
The case -- filed in Oregon and asserting claims under the Computer Fraud and Abuse Act and the Racketeer Influenced and Corrupt Organization Act -- details the RIAA's alleged use of "illegal and flawed" methods when investigating people for downloading or swapping copyrighted songs without paying for them.
The plaintiff in the case, disabled single mother Tanya Andersen, claims the RIAA was aware of the faulty methods but has nonetheless filed lawsuits against innocent people in some cases.
Andersen claims she is not the only victim of such tactics and is therefore seeking class-action status for her suit. If the court grants that status, the RIAA could be facing a losing proposition because class-action suits can be extremely risky for defendants, in this case creating the potential for a big payout by the music labels.
"If class action is certified, it's more likely that the record companies would settle," said Ronnie London, an attorney versed in class-action law with the firm of Davis Wright Tremaine, which specializes in communications law.
Settlement could also lead to less aggressive legal tactics in pursuit of online pirates.
The Associated Press (via Forbes.com) reports as follows:
Woman Targets RIAA With Lawsuit By WILLIAM McCALL 08.29.07, 4:05 PM ET
PORTLAND, Ore. -
An Oregon woman has filed a class-action lawsuit against the Recording Industry Association of America, accusing it of illegal spying and intimidation against thousands of people across the nation to crack down on music pirating.
The lawsuit by Tanya J. Andersen claims the association and a company called MediaSentry "conspired to develop a massive threat and litigation enterprise targeting private citizens across the United States."
The lawsuit also accuses the association of violating state and federal racketeering laws.
The complaint filed August 15 in U.S. District Court in Portland claims that MediaSentry has admitted it has misidentified people suspected of illegally downloading music.
Four years and more than 20,000 lawsuits later, the RIAA’s campaign of suing individual American music fans has failed. It has failed to curtail P2P downloading. It has not persuaded music fans that sharing is equivalent to shoplifting. It has not put a penny into the pockets of artists. It has failed to drive the bulk of filesharers into the arms of authorized music services. In fact, the RIAA lawsuits may well be driving filesharers to new technologies that will be much harder for the RIAA’s investigators to infiltrate and monitor.
Although the RIAA has made several motions to dismiss charges of "copyright misuse" when they had been interposed as a counterclaim, it has now -- for what is believed to be the first time -- filed a motion to strike when "copyright misuse" was asserted solely as an affirmative defense, in UMG v. Lindor.
Although Ms. Lindor interposed no counterclaim, the RIAA's arguments are virtually identical to the arguments it made in attacking the counterclaims in four (4) other cases.
The defense asserted by Ms. Lindor, first raised by her in March, 2006, alleges:
8. The plaintiffs, who are competitors, are a cartel acting collusively in violation of the antitrust laws and of public policy, by tying their copyrights to each other, collusively litigating and settling all cases together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in accordance with a uniform agreement, and through common lawyers, thus overreaching the bounds and scope of whatever copyrights they might have. 9. As such, they are guilty of misuse of their copyrights.
Ms. Lindor's opposition papers are due September 18th, and the RIAA's reply papers are due October 2nd.
The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.
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
In its attempt to create a right to sue for "making available", the RIAA has argued, at the oral argument in Elektra v. Barker, and more recently in its opposition brief in Warner v. Cassin, that the term "to authorize" in the preamble language of 17 USC 106 means that merely "authorizing" something is tantamount to "infringement". This argument was recently repudiated by the United States Court of Appeals for the First Circuit, in Latin American Music Co. v. Archdiocese of San Juan.
Defendants' lawyers brought this recent holding to the respective Judges' attention in both the Barker and Cassin cases.
The RIAA has written to Judge Karas in Elektra v. Barker and to Judge Robinson in Warner v. Cassin, to bring to their attention a new decision on the "making available" issue, which was issued in a pro se case, Atlantic v. Howell in Arizona. In an unusual tactic, they mailed their letters but did not file them electronically as the Court rules require.
Lawyers for Ms. Barker and Ms. Cassin responded to the RIAA's late submission, pointing out to the judges that (1) Mr. Howell had no legal representation in Howell, (2) the judge in Howell made incorrect references to 3 other decisions, and (3) the judge did not explain how 'making available' could fulfill the requirements of a "distribution" under 17 USC 106(3).
In Atlantic v. Howell, a case against a pro se defendant in Arizona, the judge ruled in favor the RIAA and concluded that "making available" is in and of itself a copyright infringement.
This is the second time of which we are aware in which, in the context of a summary judgment motion against a pro se litigant, a judge has stated that merely "making available" is in and of itself a copyright infringement. The first was Motown v. DePietro in Philadelphia, where the RIAA's summary judgment motion was nevertheless denied.
Tip of the hat to Jon Newton at p2pnet.net who brought this to my attention.
The Knoxville News Sentinel reports that in Virgin v. Does 1-33, the RIAA's attempt to obtain the identities of students at the University of Tennessee, Knoxville, "John Doe #28", a student at the University, has made a motion to quash the subpoena which has been served.
According to the News Sentinel, this is the first attempt to attack the challenge to the RIAA's discovery proceedings in Knoxville.
Despite a schedule agreed upon by the parties and fixed by the Magistrate Judge, the RIAA has written a letter demanding that the case proceed against the defendant, who suffers from Multiple Sclerosis, in Elektra v. Schwartz
In Warner v. Cassin, the RIAA has taken the unusual step of making a motion for leave to file a sur-reply brief, and the even more unusual step of filing a sur-reply brief without the Court's permission having been granted.
Accorting to ZeroPaid.com, the RIAA has targeted 503 additional college students at 58 colleges and universities. We note that Harvard is not among them.
503 "lucky" new students get to start the Fall Semester even deeper in debt.
The RIAA has announced that it has targeted 503 new students in its latest "deterrence program" aimed at eliminating college campus piracy across the country. This brings the approximate number of targeted students to 2,926 and counting thus far.......
In the seventh wave of this new initiative, the RIAA this week sent letters to 58 schools including:
Interesting July article I just came across on investment website, RealMoney.com at TheStreet.com:
Music Labels Might Still Be Shorts By Cody Willard RealMoney.com Contributor 7/9/2007 1:38 PM EDT
I've been highlighting the idea that content owners and producers will benefit greatly from the collapsing distribution costs provided by the Internet for more than a year. For the last few weeks, I've been trying to embrace even the music labels. Yes, the same music labels that have actually not only been unable to figure out how to monetize free and instantaneous distribution of their content but that have actually been suing those who actively steal their content.
But as the headline of my alma mater's Daily Lobo underscored this weekend, these guys who own the rights to all the quality, popular music from the last century just keep self-destructing. They're supposed to be end-user empowering.
I spent some time during my visit home last week at the University of New Mexico's Albuquerque campus, where I still unofficially hold the record for points per minute average on the Lobo basketball team. While there, I saw the headline on the student paper: "Judge's ruling doesn't dismiss RIAA's case." Seems New Mexico Federal District Judge Lorenzo Garcia denied a request to subpoena the University of New Mexico for the personal information of Internet users suspected of music piracy.
I'm sorry, but what year is it? You're telling me that in July 2007, as industry revenue has fallen double digits this year, as the entire music industry is collapsing into possible bankruptcy, these guys are still actively suing college kids trading music files?
Revolutionomics 101 dictates that those who empower, win. Those who protect, lose.....
