Recording Industry vs. The People

Tuesday, March 25, 2008

p2pnet follows up on survey of states in which MediaSentry is not licensed

p2pnet.net is staying on top of the MediaSentry licensing story:

MediaSentry: have you checked your state?

p2pnet news | RIAA News:- Is Warner Music, EMI, Vivendi Universal and Sony BMG ‘investigator’ MediaSentry operating illegally in your state?” - p2pnet asked by way of a follow-up to MediaSentry: RIAA can of worms.

The Massachusetts State police have banned the company, it’s been accused of operating without a licence in Oregon, Florida, Texas and New York, and similar charges have been levelled at it in Michigan, we said in Is RIAA’s MediaSentry illegal in YOUR state?

Complete article

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

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posted by Ray Beckerman @ 3/25/2008 03:57:00 PM

Comments
A word from Recording Industry vs. The People, to newcomers about to submit a comment.
1. Thank you for visiting our site.
2. The RIAA has a habit of citing our blog to judges, so please keep comments dignified and worthy of the important issues we are discussing, in keeping with our comment policies.
3. If you see a violation of our comment policies, please let me know by comment or by email.
4. You can post anonymously, but please sign off by giving us something to call you. Conversations among several people called "Anonymous" get too confusing.
Thanks.
Best regards.
-Ray

As a regular (make that daily) visitor to p2pnet.net as well I have been keeping up to speed with Jon's support regarding MediaSentry. Hopefully, before too long, we will have a complete state-by-state breakdown of their (lack of) licenses to operate as investigators.

It should then be possible, at every available opportunity, in court to pose the simple question "Does MediaSentry have a licence to operate in this state: Yes or No?".

As some of the posts here have suggested, it is quite possible that they are licensed but not as MediaSentry per se which makes it difficult to track them - anything to muddy the waters of course.

Dave

Link to this comment posted by

Jadeic : March 25, 2008 5:59:00 PM EDT

I beleive that MediaSentry/Safenet being unlicensed in so many states will eventually be a way for defendants to start winning cases or getting the RIAA stopped in its tracks. If a court begins to strike MediaSentry's "forensic evidence" due to not having a license in many states, this will make RIAA think differently about these tactics, or at the very least hire a licensed investigator.

Link to this comment posted by

StephenH : March 26, 2008 4:27:00 AM EDT

stephenh, I think your post is kind of misleading when you say "will eventually be a way for defendants to start winning cases". I'm not aware of any defendant losing a fully contested case, other than Jammie Thomas.... and that case isn't over yet.

The way for defendants to win cases is to stay in there and fight.

The RIAA's cases are based on zero evidence, and fabricated legal theories. If defendants fight they will win.

It's that simple.

Link to this comment posted by

Ray Beckerman : March 26, 2008 9:48:00 AM EDT

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"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
District Judge
Central District of California
March 2, 2007
Elektra v. O'Brien
2007 ILRWeb (P&F) 1555

"In National Car Rental System, Inc. v. Computer Associates Int’l, Inc., the Eighth Circuit stated that “‘[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.’ 2 Nimmer on Copyright § 8.11[A], at 8‐124.1.” 991 F.2d 426, 434 (8th Cir. 1993)..... Neither party presented this Eighth Circuit case to the Court." (Emphasis supplied)
-Hon. Michael J. Davis
District Judge
District of Minnesota
May 15, 2008
Capitol v. Thomas

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RECENT POSTS:

p2pnet follows up on survey of states in which MediaSentry is not licensed

QUOTATIONS FROM DECISIONS

"Merely making a copy available does not constitute distribution....The statute provides copyright holders with the exclusive right to distribute "copies" of their works to the public "by sale or other transfer of ownership, or by rental, lease, or lending." 17 U.S.C. ...106(3). Unless a copy of the work changes hands in one of the designated ways, a "distribution" under ...106(3) has not taken place."
-Hon. Neil V. Wake
District Judge
District of Arizona
April 29, 2008
Atlantic v. Howell
2008 ILRWeb (P&F) 1665

"An offer to distribute does not constitute distribution"
-Hon. Neil V. Wake
District Judge
District of Arizona
April 29, 2008
Atlantic v. Howell
2008 ILRWeb (P&F) 1665

"If the owner of the shared folder simply provides a member of the public with access to the work and the means to make an unauthorized copy, the owner is not liable as a primary infringer of the distribution right, but rather is potentially liable as a secondary infringer of the reproduction right....Furthermore, if contributory liability applies, the recording companies must still prove that a third-party actually obtained an unauthorized copy of the work to impose liability on [defendant]."
-Hon. Neil V. Wake
District Judge
District of Arizona
April 29, 2008
Atlantic v. Howell
2008 ILRWeb (P&F) 1665

"“[W]ithout actual distribution of copies.... there is no violation [of] the distribution right.” 4 William F. Patry, Patry on Copyright § 13:9 (2007); see also id. N. 10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)(affirming the district court’s finding “that distribution requires an ‘actual dissemination’ of a copy”)".
-Hon. Janet Bond Arterton
District Judge
District of Connecticut
February 13, 2008
Atlantic v. Brennan
534 F. Supp.2d 278

"Plaintiff ... must present at least some facts to show the plausibility of their allegations of copyright infringement....However, .... Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation."
-Hon. Rudi M. Brewster
Senior District Judge
Southern District of California
August 17, 2007
Interscope v. Rodriguez
2007 WL 2408484

"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. "
-Hon. Margaret J. Kravchuk
Magistrate Judge
District of Maine
January 25, 2008
Arista v. Does 1-27
2008 WL 222283

"If this were to become a more typical course in prosecuting the type of allegations faced by defendant, it is reasonably foreseeable that members of the public would be more hesitant to use the Internet to share creative works in general, regardless of whether their specific conduct violated copyright law or occupied an area yet to be addressed by copyright law. Copyright holders generally, and these plaintiffs specifically, should be deterred from prosecuting infringement claims as plaintiffs did in this case. "
-Hon. Donald C. Ashmanskas
Magistrate Judge
District of Oregon
September 21, 2007
Atlantic v. Andersen
2008 WL 185806

"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
-Hon. Lee Yeakel
District Judges
Western District of Texas
November 17, 2004
Fonovisa v. Does 1-41
2004 ILRWeb (P&F) 3053

"[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

"[N]either Florida’s litigation privilege nor the Noerr-Pennington Doctrine serves as a shield for sham litigation."
-Hon. Richard A. Lazzara
District Judge
Middle District of Florida
September 19, 2007
UMG v. Del Cid
2007 ILRWeb (P&F) 2721

"[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

"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

"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

"[T]he inducement rule.... is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.....One infringes contributorily by intentionally inducing or encouraging direct infringement...."
-Hon. David H. Souter, for the Court
Justice
U.S. Supreme Court
June 27, 2005
MGM v. Grokster
545 U.S. 913

"[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 District of New York
November 9, 2006
UMG v. Lindor
2006 WL 3335048

"[D]istributing unlawful copies of a copyrighted work does violate the copyright owner's distribution right and, as a result, constitutes copyright infringement. In order to establish "distribution" of a copyrighted work, a party must show that an unlawful copy was disseminated "to the public." 17 U.S.C. § 106(3); see National Car Rental v. Computer Associates , 991 F.2d 426, 434 (8th Cir. 1993); 2 Nimmer, § 8.11[A] at 8-137."
-Hon. John D. Butzner, Jr.
Fourth Circuit
June 30, 1997
Hotaling v. Church of Jesus Christ of Latter-Day Saints
118 F.3d 199

"[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
Western District of North Carolina
February 27, 2008
LaFace v. Does 1-38
2008 WL 544992

*Printable list of above quotations

"Recording Industry vs. The People"
By Ray Beckerman

Morlan Ty Rogers -We are lawyers in New York City, practicing at Vandenberg & Feliu, LLP. We established this site to collect and share information about the wave of sham "copyright infringement" lawsuits brought by four large record companies to abuse the American judicial system, distort copyright law, and frighten ordinary working people and their children.
-Ray Beckerman
-Morlan Ty Rogers
www.vanfeliu.com
(Attorney Advertising)

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