Recording Industry vs The People: Oral argument set for December 9th in Cincinnati in Elektra Entertainment Group v. Licata

Friday, November 21, 2008

Oral argument set for December 9th in Cincinnati in Elektra Entertainment Group v. Licata

District Judge Herman J. Weber has granted the defendant's request for oral argument of the pending motions in Elektra Entertainment Group v. Licata, a Cincinnati "throwing in the towel" case.

This is the case in which (a) the defendant moved to dismiss the complaint for failure to state a claim and for attorneys fees, (b) the RIAA moved to dismiss its own complaint "without prejudice", and (c) the Magistrate Judge denied defendant's motions, and granted the RIAA's motion.

Defendant has filed papers objecting to the Magistrate Judge's recommendations, and the matter is now before Judge Weber.

The argument is open to the public, and will be held at:

Tuesday, December 9th
10:00 AM
Room 801
Potter Stewart US Court House
100 East Fifth St.
Cincinnati, Ohio 45202

Keywords: lawyer 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 portable music player

7 comments:

Anonymous said...: Ray,
I am just an interested party but I have to ask WHY these judges continue to side with the lobby groups? You have published so many cogent arguments from numerous defense teams that anyone would recognize the repeated and sleazy tactics of the RIAA et al. Is there an unknown variable somewhere in the equation? Does it involve the "greening" of the American judiciary? I just have to know!; November 21, 2008 at 8:40:00 PM EST
raybeckerman said...: I believe the Magistrate Judge's decision is erroneous. Judges sometimes make mistakes. That's life. Hopefully, the judiciary is waking up to the huge fraud that has been perpetrated upon the courts and hopefully District Judge Weber will set this right.; November 21, 2008 at 10:27:00 PM EST
Anonymous said...: This man seconds Interested Party's comments. This man would have said the same thing if IP hadn't beaten him to it. The arguments against the RIAA cases are clear and concise enough that even non-lawyers can understand their points, while the RIAA papers are often dense, complex, and obscure. Do judges favor complex, arcane arguments?

Perhaps they are akin to readers (and too often critics) who rave about books they don't understand - books that sometimes defy understanding - because they fear admitting their ignorance otherwise? The Emperor's New Clothes comes to mind in this reference. Surely a judge wouldn't want to be "caught out" by some obscure reference that they clearly missed that was resoundingly ruled in favor of on appeal.

Or maybe it's this quirk. The overly well-funded RIAA can continue this case as long as they wish. This man finds it hard to believe that any judge ever wishes to see his cases appealed with the possibility of being told he's wrong. That can't be good for one's future advancement as a judge. Is there perhaps an unconscious bias towards getting rid of the RIAA by overcompensating in their direction so as not to be hung out to dry afterwards?

And speaking of bias, consider big corporations and expensive lawyers versus some poor pro se defendant. Could one expect in many cases a judge to assume that the recording industry knows its own laws and regulations better than anyone else and be subtly inclined to believe their view of things?

This man feels that none of the above should apply to judges, but knows that they're human too. Sadly, the victims of this relentless campaign are also human, and not rich or secure.

{The Common Man Speaking}; November 22, 2008 at 12:03:00 PM EST
Anonymous said...: interested party and {The Common Man Speaking}:

I think there are two conceptual misunderstandings afloat.

When I talk to my friends about these cases, they always ask, "Well who was it then? Was it a wife? Was it kids?" They always assume (a) a law was broken, (b) the IP was identified correctly, (c) it was someone in defendant's house, (d) defendant knows who it is, and (e) defendant is responsible. They never stop to question these assumptions, but if any one of the assumptions is wrong, the case is misguided.

Judges have placed value on "identified the an IP address controlled by Joe" or some such language as being reasonable grounds for a lawsuit, even though the RIAA catches many dolphins. The fact that judges generally aren't giving lawyer awards to dolphins probably means they don't precisely know what is meant by "being in control of an IP" or "identified an IP".

XYZZY; November 22, 2008 at 9:20:00 PM EST
Anonymous said...: XYZZY:

The issue about account ownership is a problem that really isn't easily addressed because the models used to explain an IP address to judges isn't close enough to the reality (ie: the old telephone number analogy) for them to truly understand what's going on.

I've said before that it would be better to say that you have no idea which member of the household would pick up that telephone when it rings, but that isn't close enough either. IP addresses change locations at random intervals, so the phone that rings when the number is dialed will be in a different house after some time has passed.

I propose a new model to present to a judge:
An IP address can be used to identify a person like a prepaid cell phone that's left on the table of the local MacDonald's. You can likely tell who bought it, and you know roughly who it called, but you have no idea who picked the thing up and dialed the number. It all depends on who got hungry, picked up an order of fries and sat at the table. You can open the cell's menu and see the call history, but that won't show you who punched the buttons.

Using that kind of model for the IP address makes a little more sense, even though it still isn't perfect. In fact, it shows that you shouldn't arrest the guy who bought the phone when some teenager finds it on a table and uses it to call his school with a bomb threat so he wouldn't have to go to classes after lunch.; November 23, 2008 at 1:45:00 PM EST
Anonymous said...: Just wondering? In Elektra, plaintiff counsel claims connection to the defendants computer, and in LaFace V. Does 1-5they claim that they do not connect to the computer.

Elektra Entertainment Group v. Licata , page 3 of Plaintiffs Opposition to Defendants motion to dismiss, Plaintiffs counsel quotes "Once connected to the user’s computer, MediaSentry also seeks to determine what other files the individual is distributing to others for download."

While in LaFace v. Does 1-5, when presented with charges that it operated as a private investigator, plaintiffs defend MediaSentry by claiming that “MediaSentry did not access Defendant's computer" (See Doc. No. 28) “nor did it act like "thugs off the street . . Invading Defendant's premises" to "seize and carry off' her hard drive.. . Rather, MediaSentry simply observed and downloaded from the Internet information that Defendant chose to upload and make available to the public.“ (PLAINTIFFS' RESPONSE TO DEFENDANT DOE #5'S SUPPLEMENTARY MOTION TO QUASH SUBPOENA) … and …“MediaSentry receives information through cyberspace from a source whose location may be unknown at the time the information is transmitted". (PLAINTIFFS' RESPONSE TO DEFENDANT DOE #5'S AUGUST 13, 2008 LETTER TO THE COURT AND OBJECTION TO SUPPLEMENTAL AUTHORITY) Page 4.

Which might it be, do they connect to the computer or not?; November 24, 2008 at 5:36:00 PM EST
Anonymous said...: To Anonymous:

"Which might it be, do they connect to the computer or not?"

That depends on what the RIAA needs to say to make its', in a lot of peoples' opinion and backed by current law fradulent, case.

We have already seen a lot of this "Janus Speak" already by the RIAA. I can only hope that other judges are waking up to it and will either revisit their decisions or at least be more aware of what is going on if they are assigned some more of these cases.; November 25, 2008 at 11:09:00 AM EST

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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