Recording Industry vs The People: Materials for Last H.O.P.E. July 19, 2008, talk

Saturday, July 19, 2008

Materials for Last H.O.P.E. July 19, 2008, talk

If you're attending my talk at the Last H.O.P.E. Conference on July 19th, here are some background materials:

RIAA Expert
Jacobson testimony: no testing, no publishing, no peer review, no nothing
Judge saying he can testify anyway
MediaSentry printouts, part 1
MediaSentry printouts, part 2
Links to complete deposition transcript, plus all exhibits
Direct link to complete deposition transcript
RIAA saying it identifies an individual
RIAA expert witness saying RIAA does not identify an individual

RIAA Investigator
MediaSentry says it is not an expert witness
MediaSentry says it is an expert witness
RIAA says MediaSentry is an investigator
RIAA says MediaSentry is not an investigator
MediaSentry says it is an investigator
MediaSentry says it is not an investigator

Defendant's expert
Expert witness report of Prof. Johan Pouwelse

Substantive law
Atlantic v. Howell (No "making available")
Capitol v. Foster (RIAA's theory of secondary liability "marginal")

Financial
Expert Witness Defense Fund (Managed by Free Software Foundation)

Commentary & discussion:

p2pnet.net
PTBvisiongrrl's Live Journal

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

15 comments:

Unknown said...: I didn't have much of a chance to read the HOPE schedule, but I'll be sure to make my way towards your session. I'm looking forward to it!; July 17, 2008 at 8:31:00 PM EDT
Alter_Fritz said...: Thank you very much!

Say, do you know if they have a live stream of the talks? (well yours would be the most important one of course!) ;-)

And if they have not, then annoy them please to make your talk as fast as possible available as a torrent afterwards.; July 17, 2008 at 8:51:00 PM EDT
Anonymous said...: Ray, what is H.O.P.E. and will it have any impact on pending litigation?
RK; July 17, 2008 at 10:02:00 PM EDT
Anonymous said...: The last two items do not load.

Kip Patterson; July 18, 2008 at 6:51:00 AM EDT
raybeckerman said...: Kip, the 'technical difficulties' at ilrweb.com have resurfaced.

I've deleted the 2 nonworking links you referred to, and will insert new links when I have the documents uploaded.; July 18, 2008 at 7:24:00 AM EDT
raybeckerman said...: OK, ilrweb seems to be back in operation.; July 18, 2008 at 8:55:00 AM EDT
Alter_Fritz said...: RK asked what H.O.P.E. is

it is a gathering of the people that "do computers".

Some say "hacker conferences" to those gatherings.

Its a 4 letter acronym for Hackers On Planet Earth.

So while this conference might not have the direct impact among the same peer groupt that attend for example the fordham IP thingy with all those high class politicos/judges/lawyers, greater exposure to the public of the flaws/evilness of what organised music is going with the court systems and society will result from events like HOPE non the less.

http://en.wikipedia.org/wiki/H.O.P.E.

What are "Hackers"?
http://www.paulgraham.com/gba.html
(just as one example! there are others also well written explainations what hackers are); July 18, 2008 at 10:11:00 AM EDT
raybeckerman said...: Here's a link.; July 18, 2008 at 11:02:00 AM EDT
Anonymous said...: I'm a little concerned about how Ray will fit into HOPE.

No nickname (I liked "Grandama Death")
and I sure hope he isn't going to wear a bow tie.

Kip ( alias wildbird) Patterson; July 18, 2008 at 11:50:00 AM EDT
raybeckerman said...: Kip...

1. My nickname is NewYorkCountryLawyer.... don't you read Slashdot?

2. I never wear bow ties. In fact I never wear ties, unless I'm going to court. Or a funeral. Or a bar mitzvah.

3. I went to Bronx High School of Science, and wore pocket protectors.

Give me a break.

Just because I'm not that smart doesn't mean I won't fit in. Somebody has to be at the bottom of the curve.; July 18, 2008 at 12:53:00 PM EDT
Anonymous said...: Thanks for the links RaY!; July 18, 2008 at 2:06:00 PM EDT
Steve Zweig said...: Regarding Ray's credentials for H.O.P.E.

Bronx High School of Science, +2
Pocket protectors, +3

Has dated and apparently married, -5

Overall, a wash. We'll just have to judge by his talk.

IMALS (I am a law student); July 19, 2008 at 3:57:00 PM EDT
Anonymous said...: So, Ray, how did the talk go??

RK; July 20, 2008 at 10:01:00 PM EDT
zi said...: thanks to everyone who came to the HOPE Conference. Unbeknownst to me, we went up against the keynote speaker, which was the worst possible time slot to be given.

I didn't have pocket protectors: -1
owned a 2400 modem: +1

.. so Ray and I are tied at 0.; July 25, 2008 at 3:19:00 AM EDT
Alter_Fritz said...: Hey, the search box does give the wanted page even for lazy guys like me. :-)

Ray's and Zi's talk can be downloaded using an "online media distribution system" from

http://hopetracker.donthax.me/

http://hopetracker.donthax.me/torrents/2600%20-%20The%20Last%20Hope%20(2008)%20-%20RIAA%20Litigations%20-%20How%20The%20Tech%20Community%20Can%20Help.mp4.torrent; August 14, 2008 at 3:56:00 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