Recording Industry vs The People: Hearing in Rhode Island this morning in Tenenbaum case, relating to production of defendant's parents' computer

Monday, December 15, 2008

Hearing in Rhode Island this morning in Tenenbaum case, relating to production of defendant's parents' computer

We received this report this morning:

FOR IMMEDIATE RELEASE CONTACT: Debbie Rosenbaum | 314.761.3322
December 15, 2008 drosenbaum@law.harvard.edu

HARVARD PROFESSOR & STUDENTS FIGHT THE RIAA:
COME TO RHODE ISLAND FEDERAL COURT
TO PROTECT DEFENDANT’S FAMILY

Now it’s his parents. Who’s next?

Cambridge, MA (December 2008) – At a Dec. 15 hearing in Rhode Island federal court, Harvard Law School Professor Charles Nesson and his team of students will defend Rhode Island residents Arthur and Judie Tenenbaum from the full might of the U.S. recording industry’s combined lobbying and litigating power. The Tenenbaums face legal pressure from the industry's lawsuit against their son, Joel, a graduate student at Boston University accused of sharing music files online.

Nesson and his team allege that the Recording Industry Association of America and a coalition of record companies are abusing the federal court system with their litigation tactics, which attempt to make an example out of Joel and his family in the name of “deterrence.” Joel faces possible damages of more than $1 million for allegedly sharing seven songs on the Kazaa file-sharing network.

The Dec. 15 hearing will address the recording industry's motion to force Arthur and Judie to produce their home computer so that it can be inspected for evidence of copyright infringement. The computer is not the device on which the alleged downloading took place, and Arthur and Judie did not own the computer when Joel lived with them.

“The basic rules of evidence suggest that this invasion of privacy is both unnecessary and absurd,” said Matt Sanchez, one of Nesson’s students working on the case. “This hearing isn’t only about Joel’s parents. It’s also about finally putting up a fight against the recording industry’s intimidation practices.”

The hearing is scheduled for December 15 at 10:00 AM at the Federal Building and Courthouse, One Exchange Terrace, Providence, RI 02903 in Courtroom A, before Magistrate Judge Lincoln D. Almond. Interviews will be available with Charles Nesson and his students immediately following the hearing.

For more information, please visit: http://blogs.law.harvard.edu/cyberone/riaa/.

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CyberOne is a course that teaches Harvard Law School students to use the tools of cyberspace to improve society, guide development of the law, and connect in creativity and peace. Professor Charles Nesson is the William F. Weld Professor of Law at Harvard Law School and Founder of the Berkman Center for Internet & Society.

Commentary & discussion:

p2pnet.net

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

3 comments:

Alter_Fritz said...: Debbie wrote: "Now it’s his parents. Who’s next?"

Here, me me!
I want to be next! Since I have a Tannenbaum right next to my PC standing, I guess I'm guilty by association. *Me making whistling noises resembling "Oh Tannenbaum, oh Tannenbaum wie grün sind deine Blätter"*

Kidding aside, those that have seen the RIAA lawyers in action already know that this move by them is nothing new. They have shown it already in Lindor when they intimidated the employer of the son that they would *love* to snoop around all the companies PCs that the son (who was not accused)had access to.
I guess a court proceeding like a hearing are public also in so far that recording it is allowed. I would like to hear RIAA-EVE once more asking Charlie if he is taping the proceedings to make them more open to the interested public that can not be there personly.; December 15, 2008 at 10:13:00 AM EST
Anonymous said...: Since every person is connected to every other person by only a few degrees of separation at best (this man is only a few degrees from Mr. Beckerman, for example) by the RIAA's apparent logic they can sue one person, demand computers from everyone that person knows, demand computers from everyone those people know, and continue until that one case gives them rights to inspect every computer in the country.

Just how any court could even entertain a motion to examine computers of non-parties to this case (Plaintiff lawyers deserve sanctions for even just asking for such a thing in this man's opinion) completely escapes this man. This is discovery run amok, to put it in its most polite terms. To grant such a motion turns on its head the very concept of privacy -- and to the RIAA of all people, who are not even the government!

{The Common Man Speaking}; December 15, 2008 at 6:00:00 PM EST
Anonymous said...: I'm a 2L student, and I'm reading an interesting case in our professional responsibility class.

This is 475 US 1121, 106 S.Ct. 1638, 90 L.Ed2d 184., in which a city hired a private attorney to bring proceedings against an adult book store with a contingent fee if he won. Part of the ruling regarded the prosecutor's duty of neutrality.

the prosecutor "is a representative of the sovereign" and "has the vast power of the government available to him" the contingent fee compromises the duty of fairness and neutrality.

I would argue that the RIAA is just such a hired prosecutor with a contingent fee.

2L student; December 17, 2008 at 1:10:00 PM 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