Recording Industry vs The People: December 2007

Monday, December 31, 2007

Year End Charitable Contribution to Expert Witness Defense Fund

If you want to make a charitable contribution today, may I suggest contributing via PayPal or credit card to the Free Software Foundation for its Expert Witness Defense Fund.

Commentary & discussion:

KPNEMO (Russian

Keywords: digital copyright law online internet 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 intellectual property

Sunday, December 30, 2007

Washington Post Article: "Download Uproar: Record Industry Goes After Personal Use"

THE LISTENER
Download Uproar: Record Industry Goes After Personal Use
By Marc Fisher
Washington Post Staff Writer
Sunday, December 30, 2007; Page M05

Despite more than 20,000 lawsuits filed against music fans in the years since they started finding free tunes online rather than buying CDs from record companies, the recording industry has utterly failed to halt the decline of the record album or the rise of digital music sharing.

Still, hardly a month goes by without a news release from the industry's lobby, the Recording Industry Association of America, touting a new wave of letters to college students and others demanding a settlement payment and threatening a legal battle.

Now, in an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

Complete article

Marc Fisher Blog (Version with Comments)

Commentary & discussion:

Slashdot
Digital Journal
Slashdot
MetaFilter Community Weblog
p2pnet.net
Short News
C/Net
Engadget
odd times signatures
Patry Copyright Blog
CNN Video
MediaPostPublications
Tech-Ex
Tommy k Johanssons blogg om datorer & Internet (Swedish)
Time

Friday, December 28, 2007

In College of William & Mary case, RIAA submits Oklahoma State University decision as "supplemental authority"

Subsequent to the filing of its reconsideration motion in the uncontested "John Doe" case against College of William & Mary students, Interscope v. Does 1-7, the RIAA has submitted its victorious decision in the Oklahoma State University case, Arista v. Does 1-11.

Interscope v. Does 1-7 is the case where Judge Kelley sua sponte denied the RIAA's application for discovery.

RIAA motion to submit "supplemental authority"*

* Document published online at Internet Law & Regulation

New Contested Case in Phoenix, Arizona, Capitol v. Weed; Counterclaims Asserted for Abuse of Process, Prima Facie Tort, Conspiracy, and others

A new contested case has come to our attention, Capitol v. Weed, in Phoenix, Arizona.

Apparently the defendant was representing herself for awhile, but is now represented by two Tucson, Arizona, firms, Williamson & Young and Karp Heurlin Weiss, who have filed an amended answer with counterclaims for:

-declaratory judgment of non-infringement
-abuse of process
-civil conspiracy to use illegal investigators, commit extortion, and gain unauthorized access to a computer
-prima facie tort
-copyright misuse
-invasion of privacy
-copyright abuse and forfeiture
-deceptive trade and collection practices
-declaratory judgment.

Amended Answer and Counterclaims*

* Document published online at Internet Law & Regulation

RIAA-fighting Maine law professor speaks out

In a fascinating interview with Jon Newton of p2pnet, Prof. Deirdre Smith of the University of Maine Law School's Cumberland Legal Aid Clinic, which is the first law school legal clinic in the U.S. to have taken on the RIAA, says that "our students are enthusiastic about being directly connected to a case with a national scope and significance".

She went on to say that the case (Arista v. Does 1-27 (Portland, ME)) is probably one of the first intellectual property cases the clinic has ever taken on, and that if it proceeds further, she expects to also "draw on the considerable expertise in IP among members of our faculty and the Maine Center for Law and Innovation, another program of the Law School".

[Ed. Note: Congratulations to the University of Maine School of Law for giving its law students the opportunity for hands-on experience fighting the RIAA's effort to rewrite copyright law. -R.B.]

Commentary & discussion:

Wired
Slashdot
WinExtra
KPNEMO (Russian)
The Maine Campus

Thursday, December 27, 2007

Northern Michigan motion to dismiss complaint, vacate order, quash subpoena, in LaFace v. Does 1-5, now fully briefed

The motion by a student at Northern Michigan University to dismiss the complaint, vacate the ex parte order, and quash the subpoena issued pursuant to the order, in LaFace v. Does 1-5, has now been fully briefed, as the RIAA has filed its opposition papers, and John Doe #4 has filed his or her reply memorandum.

RIAA Opposition Brief*
Defendant's Reply Brief*

* Document published online at Internet Law & Regulation

Wednesday, December 26, 2007

Has RIAA expert Doug Jacobson contradicted himself in UMG v. Lindor?

A year and five months after examining the defendant's hard drive in UMG v. Lindor, the RIAA's "expert" witness, Dr. Doug Jacobson, has issued a "supplemental report" which appears to contradict his earlier "reports" alluding to the hard drive inspection.

In view of the superb job the Slashdot community and the Groklaw community did in helping first to prepare for, and then to vet, Jacobson's deposition, I have submitted to both communities, and herewith humbly submit to my readers with technical background, for your learned review, the now three (3) versions of the "expert's" opinions based on the hard drive, for your analysis.

As with almost all federal litigation documents nowadays, they are, unfortunately, in *pdf format:

(a) December 19, 2006, declaration;

(b) unsigned October 25, 2006, report, awaiting approval from RIAA lawyers; and

(c) December 15, 2007, version.

The initial observations of commentators here on "Recording Industry vs. The People" are located here.

Followup: Dec. 28, 2007, 11:10 A.M.: In an incredible response, the Groklaw community have responded with over 500 comments, and counting, with extremely insightful analysis into the "junk science" of the RIAA. For some really good reading, go to this link. To PJ and to all those who gave of their valuable time to read Dr. Jacobson's multiple "reports", and to point out their many flaws, on behalf of Marie Lindor and all of the other victims of the RIAA extortion campaign, THANK YOU FROM THE BOTTOM OF MY HEART.
-R.B.

Groklaw Discussion

Commentary & discussion:

p2pnet.net
Groklaw
p2pnet.net (12/27)

To contribute to Marie Lindor's legal defense, see below.
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.

Saturday, December 22, 2007

Student Attorneys Join Fight Against RIAA in Maine; Univ. of Maine law students submit reply brief in Arista v. Does 1-27

For the first time of which we are aware, a university's legal clinic has jumped in to fight the RIAA's ex parte litigation campaign against the nation's college and university campuses.

In Arista v. Does 1-27, where eight University of Maine students are being represented by Bob Mittel of Mittel Asen, a Portland, Maine, law firm, two other "John Doe" students are being represented by student attorneys from the University of Maine School of Law's legal clinic, the Cumberland Legal Aid Clinic, adjacent to the University of Maine School of Law campus, also in Portland.

The student attorneys, Hannah Ames and Lisa Chmelecki, are working under the supervision of Prof. Deirdre M. Smith of the University of Maine School of Law. Professor Smith serves on the Maine Supreme Judicial Court's Advisory Committee on the Rules of Evidence and Governor John Baldacci's Select Committee on Judicial Appointments.

Both the eight students represented by Mr. Mittel's firm, and the two students represented by the student attorneys at Cumberland Legal Aid Clinic, submitted reply briefs in further support of their motion to dismiss the RIAA's complaint.

Reply Memorandum on behalf of "John Does 16 & 18" in support of motion to dismiss complaint*
Reply Memorandum on behalf of "John Does 2, 3, 6, 7, 8, 15, 22, and 23" in support of motion to dismiss complaint*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
Slashdot
KPNEMO (Russian)

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

Friday, December 21, 2007

GWU Students file reply brief further supporting dismissal of complaint

In Arista v. Does 1-19, the Washington DC case in which Matthew Oppenheim is representing the RIAA in an attempt to get the private identity information of students at George Washington University, the GWU student "John Doe #3", has filed his or her reply brief in support of so much of his or her motion as sought dismissal of the complaint both for failure to state a claim and for misjoinder.

This is also the case in which the judge ordered the RIAA to show cause why its subpoena should not be quashed.

The student is represented by Stephen Robertson of Robertson Medlin, from Greensboro, North Carolina.

Reply Memorandum in Support of Dismissal of Complaint for failure to state claim and misjoinder*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net

Brooklyn defendants represented by Jimmy Lathrop oppose RIAA's request for permission to file counterclaim-dismissal motion late

In four Brooklyn cases, including Warner v. Attal, in all of which the defendants are represented by Brooklyn attorney Jaime Lathrop, the defendants are opposing the RIAA's motion for permission to file time-barred counterclaim-dismissal motions.

December 21, 2007, Letter of Jaime Lathrop to Hon. David G. Trager (re RIAA request for permission for late filing of motion to dismiss counterclaims)*

* Document published online at Internet Law & Regulation

Suggestions on what comment policy should be for "Recording Industry vs. The People"?

ANY SUGGESTIONS ON WHERE I SHOULD BE GOING WITH MY COMMENT POLICY?

1. I find comment moderation problematic because of the time delay it causes.... but I feel it may be necessary to prevention of comment spam if I allow anonymous posting.

2. Should I allow anonymous posting?

3. If someone posts anonymously but doesn't put in some kind of 'handle' should I reject the post?

Input on these issues, or any other suggestions, would be appreciated.

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