Recording Industry vs The People: Recording Industry vs The People initiates partial coverage of Viacom v. YouTube

Tuesday, May 27, 2008

Recording Industry vs The People initiates partial coverage of Viacom v. YouTube

Although it is not strictly on topic for this blog, we have decided to initiate partial coverage of the case of Viacom v. YouTube. (By 'partial coverage' I mean that I will be selective, picking out some of the most important events, rather than attempt to be exhaustive.)

Viacom v. YouTube presents important issues in the war being waged by large content owners to try and shut down the internet as we know it ( a war that is familiar to anyone who has read up on the RIAA's creative "making available" and "offer to distribute" theories in the RIAA v. The People cases ).

YouTube's recent filing -- an answer to the amended complaint -- has received a lot of press attention, but I noticed that the press accounts did not provide the readers with actual copies of the litigation document.

That's where we come in.

YouTube's answer contains this statement, which pretty well sums up what is at stake:

Viacom’s lawsuit challenges the protections of the Digital Millennium Copyright Act ("DMCA") that Congress enacted a decade ago to encourage the development of services like YouTube. Congress recognized that such services could not and would not exist if they faced liability for copyright infringement based on materials users uploaded to their services. It chose to immunize these services from copyright liability provided they are properly responsive to notices of alleged infringement from content owners.

Looking at the online world today, there is no question that Congress made the correct policy choice. Legitimate services like YouTube provide the world with free and authorized access to extraordinary libraries of information that would not be available without the DMCA -- information created by users who have every right to share it. YouTube fulfills Congress’s vision for the DMCA. YouTube also fulfills its end of the DMCA bargain, and indeed goes far beyond its legal obligations in assisting content owners to protect their works. By seeking to make carriers and hosting providers liable for internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression.

Order and opinion denying plaintiffs the right to allege punitive damages in addition to statutory damages*
Amended complaint*
Answer to amended complaint*

* Document published online at Internet Law & Regulation

(Note: The excellent Groklaw site has perceived the same need, and has posted copies of the documents, as well as *txt versions. And of course, Groklaw's usual outstanding commentary and discussion is there too.)

Commentary & discussion:

Groklaw
Slashdot
InfoWorld

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

8 comments:

Lior said...: You should note the parallel coverage on Groklaw, which includes transcribed (text) versions of the documents.; May 27, 2008 at 7:47:00 PM EDT
raybeckerman said...: Thanks, lior!

I love Groklaw.; May 27, 2008 at 11:27:00 PM EDT
Alter_Fritz said...: since PJ has an eye on that one, may I suggest that you direct one watchful eye loosely in the event something spectacular happens in the case where EMI "runs amok" in EMI vs. MP3tunes?

http://www.emigroup.com/

http://www.mp3tunes.com/

http://michaelrobertson.com/archive.php?minute_id=259; May 28, 2008 at 12:09:00 AM EDT
Anonymous said...: I'm glad you're picking this up, Ray. I look forward to your thoughts on it.

I read the answer today and it was very interesting. Of course, it won't get all that meaty until there are some motions and responses and replies. Just seeing the list of defenses makes me want to see the MSJ's and how both sides frame their arguments.

It should be an epic one. I certainly hope the court agrees with YouTube in this situation, given the further chilling effects of a precedent the other way. Who knows how many cool devices and programs we've never seen (nor will we ever) simply because of the specter of litigation from these guys.; May 28, 2008 at 12:58:00 AM EDT
Anonymous said...: Reading Viacom's complaint, I can only say: Ah, what a strange post-Grokster copyright litigation landscape this has become.

Reading Google's answer, I can only say: What, no counterclaims? Viacom, the Internet's most notorious DMCA takedown notice spam mill, should have at least a 512(f) claim heading its way.

Well, anyway, good for Google, getting punitive damages off the table. I don't have to be a lawyer to know that relieves some of the pressure to settle. And since Google has an ideology in opposition to Viacom's business interests, and the resources to fight for that ideology, it's almost certain this case will produce a precedent setting decision. And just maybe put a lid on the Grokster effect.

I'm not sure going for a jury trial is a good move for Google, though. Everyone understands that Viacom is big business, employs a lot of Americans, and occasionally creates great films. But not everyone understands what YouTube is good for, technologically, economically, or culturally. So I'll be crossing my fingers for Google to win a pre-trial judgment or dismissal -- I think they'll need it.; May 28, 2008 at 1:18:00 AM EDT
Unknown said...: Good work Ray! The more dinosaurs that we track the more un-wanted attention they receive. Although I would point out to others(Ray you already know this) that the trouble with dinosaurs is that even if dying, they thrash their tails about so much that there is a lot of collateral damage.

--hsm; May 28, 2008 at 3:56:00 AM EDT
Anonymous said...: It should be known that Viacom knows perfectly well what the law says, especially the DMCA which they paid congress to create, and are trying to test the water in the courts to ease the burden of copyright enforcement.

What makes this case interesting is that Viacom (as a surrogate for the rest of the entertainment industry) is attempting to ignore the safe harbor provisions of the DMCA. Youtube actually does a pretty good job of dealing with the DMCA takedown notices, as evidenced by complaints on both sides (content owners and content uploaders) of an unfair system.

Also of note: Viacom wants to claim distribution, because 3rd party software is not kept at bay. It will be nearly impossible to prove that Google is liable for any distribution.

Q; May 29, 2008 at 11:38:00 AM EDT
Anonymous said...: Re: Q on the DMCA

More than one entity have their fingers in the congressional pie. True, the entertainment industry was behind most of the DMCA, but it's almost certainly ISPs, cable companies, etc., that lobbied for the "safe harbor" provision.; May 29, 2008 at 6:30:00 PM EDT

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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