Recording Industry vs The People: EMI sues Video Egg in New York City

Wednesday, July 02, 2008

EMI sues Video Egg in New York City

A new copyright infringement case has been commenced in New York, by EMI and its affiliates, against Video Egg. The name of the case is Capitol v. Video Egg, and the docket number is 08-5831, in the Southern District of New York.

[Ed. note. I initially misreported this as a suit by the "RIAA", because I thought several of the "Big 4" had colluded. Upon being advised to the contrary by one of our astute regular readers, and after researching it, I came to realize that all of the plaintiff companies are EMI affiliates. -R.B.]

Complaint

Commentary & discussion:

p2pnet.net
Ars Technica

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

5 comments:

Anonymous said...: I notice how the Plaintiffs make a big deal that this is a "Public Performance" of the work in question, even though it would be watched in private on one's own personal computer. (See paragraph 40 on page 13.) I'm certain that the reason for this claim is because Plaintiffs are trying to show violation of the Performance Right codified in the Copyright Act.

Yet don't they misspeak here (as usual)? I am not allowed to publicly perform my personally owned CD without a performance license. I can listen to it myself at home on my stereo, or in my car with friends, but I can't play it at my bar as point of example. I can also listen to it on my personal computer using that computer's built-in CD reader.

Yet how is listening to a CD on my computer different than listening to a steaming audio/video file on that same computer? As I see it, the Plaintiffs here are making an argument that is very close to saying that listening to music on my personal computer is a "Public Performance" and that I don't have the rights for that.

Oh, and this is not to mention if I've streamed music in from another source like Rhapsody, or downloaded the music from iTunes.

Overall this looks like another attempt by them of overreaching in their claims. Were I Video Egg I'd first claim the DMCA defense that I'm protected as long as I comply with the DMCA. They do hurt themselves by claiming that they screen every video submitted for infringing content, but have these Plaintiffs first availed themselves of their DMCA rights of takedown?

I'd also point out that the Plaintiff companies do not provide any comprehensive list of their copyrights and the exact performances they apply to in order to let someone verify if a given performance is covered by copyright. For example, a bootleg video taken at a concert of a popular song by its best known performer is posted. Do these Plaintiffs have a copyright on that specific performance of that song, or only on the studio recorded version distributed on CD? I'm not talking about the composer of the piece, but instead of the record company claim to a given song performed in concert.

There are clearly many questions not answered, but overall it looks like the Plaintiffs would rather kill the new media than work within the laws they already have to deal with this situation.

XxX; July 2, 2008 at 11:38:00 AM EDT
Scott said...: IANAL so just wondering...

1. What makes this an RIAA case? The plaintiffs are all entities controlled by EMI, so there's no coordination happening. And their attorney does not seem to be doing the bidding of HRO.

2. Would it be correct to say that the primary issue at play here is fair use?; July 2, 2008 at 12:20:00 PM EDT
Matt Fitzpatrick said...: Ah, EMI. The same rascals who sued for trademark (yes, trademark) infringement over the "Swing, Swing, Swing" golf club commercial set to stock swing music.(1) (EMI catalogs claim ownership of Benny Goodman's 1930s jazz classic "Sing, Sing, Sing.")

Looks to me like the primary issue is going to be the Grokster versus DMCA Safe Harbor conflict.

Pre-Grokster, this would have been a slam dunk for the defendants. Web hosts simply weren't responsible for user uploaded content, beyond honoring takedown requests from copyright claimants.

But the Supreme Court's decision in Grokster blew the door wide open for fishing expeditions like this one. Now the defendants either settle -- which probably means bankruptcy and/or content filters. Or they turn their internal documents, archives, and financials over to hostile lawyers who get to search for any indication, no matter how slight, that VideoEgg or hi5 might have "induced" infringement.

Yes, those are sarcasm quotes.

Although most of the named plaintiffs are catalog publishers rather than recording labels, there's likely to be an RIAA link before this case is over. The RIAA loves content filters like Audio Magic, wants content filters installed on every PC in America(2), and seems to have more than just a "moral" stake in Audio Magic, if you catch my drift.

(1) EMI v. Hill (2nd Cir., 2000-Sep-15, hosted on AltLaw)
(2) RIAA boss: Move copyright filtering from ISPs to users’ PCs (Ars Technica, 2008-Feb-07); July 2, 2008 at 9:52:00 PM EDT
Alter_Fritz said...: given how EMI seems to have diversed its business model from producing good music to suing "god and the world" for statutory damages:

Can it be that this is not comedy but reality already?

http://www.dailymotion.com/petercoffin/video/x3yy0s_the-riaa-lawsuit-conspiracy_news

Hat tip to p2pnet.net Jon's daughter Emma for that find :-); July 4, 2008 at 12:44:00 PM EDT
Anonymous said...: While this isn't run by the RIAA, one thinks that considering the boilerplateness of the Big 4's lawsuits, it's likely caught on to the labels that it's easier to spread out and cover more ground. Why not? All they'd need to change would be the names of plaintiff and defendant, while keeping the same old sob story of how they're being devastated, regardless of the true extent (or existence) of such devastation.; July 5, 2008 at 2:36:00 AM 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