Recording Industry vs The People: MP3Tunes accuses EMI and its affiliates of engaging in massive free distribution of song files over internet in Capitol Records v. MP3Tunes

Wednesday, December 31, 2008

MP3Tunes accuses EMI and its affiliates of engaging in massive free distribution of song files over internet in Capitol Records v. MP3Tunes

In Capitol Records v. MP3Tunes, in opposition to EMI's motion to dismiss counterclaims, MP3Tunes has made detailed factual allegations that EMI and its affiliates have been engaging in massive free distribution, over the internet, using its own websites, using music blogs and other third party sites, and employing paid content delivery networks, of its song files, including the song files which it alleges MP3 is infringing.

The opposition papers list a number of sites on the internet where EMI has made its song files available for free download, "free to everyone (except, apparently, MP3tunes)". (Declaration of Michael Robertson, page 5, paragraph 11.

As an illustration, MP3 Tunes alleged:

One prominent example is the song “U R So Gay” from the aforementioned Katy Perry, who is signed to Capitol Records, which in turn is owned by EMI. While this is one of the thousands of songs EMI is suing MP3tunes for linking to on its Sideload.com web site, everyone else in the world is free to listen to and download the song from the following URL: http://capi001.edgeboss.net/download/capi001/katyperry/audio/katyperry_usogay.mp3

In the above-referenced URL, “edgeboss.net” is the domain name. As explained above, it is the brand name for Akamai, the CDN that EMI pays to distribute its music, for free, over the Internet. Just before that, “capi001” reflects that EMI’s Capital Records has an account with Akamai for music distribution.

(Declaration of Michael Robertson, pages 4-5, paragraphs 10-11). The opposition papers continue:

Here are some other examples of EMI songs which Akamai currently distributes over the Internet, free to everyone (except, apparently, MP3tunes):

· Lil’ Ru, “Don’t I Look Good” (EMI’s Capitol Records)
http://capi001.edgeboss.net/download/capi001/lilru/dontilookgood/lil_ru_dont_i_l
ook_good_cl.mp3

· Beastie Boys, “Car Thief A Capella” (EMI’s Capitol Records)
http://capi001.edgeboss.net/download/capi001/beastieboys/misc/acapella/Car_Thi
ef_A_Cappella.mp3?ewk13=1

· Doves, “Sky Starts Falling” (EMI’s Capitol Records)
http://capi001.edgeboss.net/download/capi001/doves/skystartsfalling/audio/skysta
rtsfalling.mp3

· Seth Lakeman, “King and Country” (EMI’s Relentless Records)
http://angel.edgeboss.net/download/angel/seth_lakeman_audio/digitalep/king_and
_country_128k.mp3

· XX Teens, “Darlin Original” (EMI’s Mute Records)
http://mute.edgeboss.net/download/mute/xx_teens/darlin_original.mp3

· Moby, “Moby Last Night” (EMI’s Mute Records)
http://mute.edgeboss.net/download/mute/moby/mobylastnight_sampler.mp3

MP3tunes also has several examples of music that EMI has distributed for free over the Internet in the past, but has removed from the Internet since the start of this litigation.

12. In addition, MP3tunes has since found EMI-copyrighted songs on the Internet
with URLs indicating that they were distributed by CoralCDN and Nine Systems, two other paid services which, like Akamai, distribute free MP3s for download over the Internet.

(Robertson Declaration, pages 5-6, paragraphs 11-12). MP3Tunes went on to document that EMI itself distributes the song files for free from its own web sites, directly:

among the record label sites owned by EMI which distribute free MP3 files are EMI Chrysalis, Definitive Jux Records, Siren Records, Parlophone, Bec Recordings, and Mute Record. Here are examples of actual EMI-copyrighted songs currently available for free download to everyone (except, apparently, MP3tunes):

· Vincent Vincent and the Villains, “I’m Alive ” (EMI Chrysalis)
http://www.emichrysalis.co.uk/vincentvincentandthevillains/music/track0.mp3

· Hercules and Love Affair, “Hercules Theme” (EMI Chrysalis)
http://emichrysalis.co.uk/herculesandloveaffair/downloads/16_11_07/Hercules_Theme.mp3

· Aesop Rock “Ghosts of The Barbary Coast” (EMI’s Definitive Jux Records)
http://www.definitivejux.net/store/catalog-product/US-A4T-04-173-00.html

· Goldenhorse, “Don’t Wake Me Up” (EMI’s Siren Records)
http://goldenhorse.co.nz/mp3s/Dont%20Wake%20Me%20Up.mp3

· Goldenhorse, “Fish” (EMI’s Siren Records)
http://goldenhorse.co.nz/mp3s/Fish.mp3

· Sparklehorse, “Shade and Honey” (EMI’s Parlophone Records)
http://www.parlophone.co.uk/sparklehorse/download.php?FILENAME=shadeand
honey.mp3&DOWNLOAD=1

· Mailers, “Morning Runner” (EMI’s Parlophone Records)
http://www.parlophone.co.uk/mailers/morningrunner/Cant_Get_It_Right.mp3

· Baby Shambles, “Lost Art of Murder” (EMI’s Parlophone Records)
http://www.parlophone.co.uk/babyshambles/timesdownload/download.php?DOW
NLOAD=1&FILENAME=babyshambles-lost_art_of_murder.mp3

· Chris Taylor, “Take Me Anywhere” (EMI’s Bec Recordings)
http://www.becrecordings.com/christaylor/1.mp3

· Chris Taylor, “That’s How It Goes” (EMI’s Bec Recordings)
http://www.becrecordings.com/christaylor/2.mp3

· Michael Andrews and Gary Jules, “Mad World” (EMI’s Mute Records)
http://www.radiomute.com/rmmusic/fieldrecordings-mad%20world.mp3

Please note that these too are just examples. There are hundreds, if not thousands, of other EMI copyrighted songs on such sites which fit this category.

(Robertson declaration, pages 6-7, paragraph 13). The papers also alleged that many of the links which form part of EMI's infringement claim are links to music blogs and other sites which offer free downloads of EMI material with EMI's authorization or implied consent.

Declaration of Michael Robertson
Defendant's Memorandum of Law

Commentary & discussion:

Slashdot
TechDirt
p2pnet.net
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

9 comments:

Alter_Fritz said...: 2008-12-31 22:36:17.875 Connecting to emichrysalis.co.uk:80
2008-12-31 22:36:17.906 Connecting to 195.225.83.57:80
2008-12-31 22:36:17.937 Connected
2008-12-31 22:36:17.937 GET /herculesandloveaffair/downloads/16_11_07/Hercules_T%20heme.mp3 HTTP/1.1
2008-12-31 22:36:17.937 Host: emichrysalis.co.uk
2008-12-31 22:36:17.937 Referer: http://recordingindustryvspeople.blogspot.com/
2008-12-31 22:36:17.937 Accept: */*
2008-12-31 22:36:17.937 User-Agent: Mozilla/4.0 (compatible; MSIE 5.00; Windows 98)
2008-12-31 22:36:17.937 Connection: Keep-Alive
2008-12-31 22:36:17.984 HTTP/1.1 404 Not Found
2008-12-31 22:36:17.984 Date: Wed, 31 Dec 2008 21:36:17 GMT
2008-12-31 22:36:17.984 Server: Apache
2008-12-31 22:36:17.984 Content-Length: 258
2008-12-31 22:36:17.984 Content-Type: text/html; charset=iso-8859-1
2008-12-31 22:36:17.984 Connection: close
2008-12-31 22:36:17.984 Http server error

"Dear members of the jury, the evidence above shows that EMI is a bunch of criminals, Put them behind bars" (Well actually it just showed that you either have made an link error Ray by putting a space between "T heme.mp3" or they removed the content in an act of destroying evidence. Anyway, technical mumbo jumbo that does not make sense and some fancy looking log lines seems to be enough to get great Jury awards from not so smart juroors. So who do i sue fro my trouble in getting that song? You Ray or EMI? ;-); December 31, 2008 at 4:45:00 PM EST
Alter_Fritz said...: see, that looks better:

2008-12-31 22:46:15.078 Connecting to emichrysalis.co.uk:80
2008-12-31 22:46:15.078 Connecting to 195.225.83.57:80
2008-12-31 22:46:16.265 Connected
2008-12-31 22:46:16.281 GET /herculesandloveaffair/downloads/16_11_07/Hercules_Theme.mp3 HTTP/1.1
2008-12-31 22:46:16.281 Host: emichrysalis.co.uk
2008-12-31 22:46:16.281 Referer: http://recordingindustryvspeople.blogspot.com/
2008-12-31 22:46:16.281 Accept: */*
2008-12-31 22:46:16.281 User-Agent: Mozilla/4.0 (compatible; MSIE 5.00; Windows 98)
2008-12-31 22:46:16.281 Connection: Keep-Alive
2008-12-31 22:46:16.531 HTTP/1.1 200 OK
2008-12-31 22:46:16.531 Date: Wed, 31 Dec 2008 21:46:16 GMT
2008-12-31 22:46:16.531 Server: Apache
2008-12-31 22:46:16.531 Last-Modified: Tue, 06 May 2008 10:32:14 GMT
2008-12-31 22:46:16.531 ETag: "116f75f-41dfac-44c8d5c91c780"
2008-12-31 22:46:16.531 Accept-Ranges: bytes
2008-12-31 22:46:16.531 Content-Length: 4317100
2008-12-31 22:46:16.531 Content-Type: audio/mpeg
2008-12-31 22:46:16.531 Connection: close
2008-12-31 22:46:16.546 Start receiving data
2008-12-31 22:46:56.281 Finished at 4317100
2008-12-31 22:46:56.312 Download complete.

or in other words: please correct your link Ray and have a "Guten Rutsch ins neue Jahr" afterwards:-)

--
A_F; December 31, 2008 at 4:49:00 PM EST
raybeckerman said...: OK Alter_Fritz, I fixed the link.; December 31, 2008 at 4:53:00 PM EST
Alter_Fritz said...: This comment has been removed by the author.; December 31, 2008 at 7:25:00 PM EST
Eric said...: Doesn't copyright give them the legal right to decide how the music gets distributed? So mp3tunes might be liable for infringement.... but mp3tunes could very easily argue that since they were distributing these songs for free already then EMI has to make a strong case for any actual damages from them ( or anyone ) sharing those files.; January 1, 2009 at 3:24:00 PM EST
Alter_Fritz said...: Eric, you are totally on the wrong track!

Defendant/CounterPlaintiff was NOT distributing anything.

It was/is offering a listing of Links just like google is.

EvilEMI lawyers commited a crime (it is a crime, isn't it to do something unter penalty of perjury that is not the truth?) [here: claiming that there is absolutely no legal EMI music out there in any case, so if there are links out there those must be illegal too and CounterPlaintiff is doing ilegal stuff by mentioning those links.]

Defendant/CounterPlaintiff has just demonstrated that this claim by EMI Lawyers is a bloddy Lie!

And if the justice works as it should do, those criminal EMI lawyers must be toast now if everything in american courts work by following law/order/justice and not who has the biggest pockets.; January 1, 2009 at 7:26:00 PM EST
Anonymous said...: Just been reading Pariser's direct testimony in Capitol v Thomas (making it text, cleaning it up and reading it).

If this is true and applicable to the other labels. It destroys her "harm" testimony.

It also creates a huge burden of proof that a person with a particular riaa file did not get it from an authorized source.

There is already testimony that a normal consumer has a lot of trouble avoiding sharing her entire directory structure.

Hugh; January 2, 2009 at 9:02:00 AM EST
Anonymous said...: This goes hand in hand with the allegations that the RIAA members actually
USE P2P apps to get their material quickly
to radio stations quickly for airplay.

They claim that having the file in
a share implies that mass distribution
is OK, so if the RIAA IS using P2P for
that purpose it WOULD destroy their cases.

Dreddsnik; January 2, 2009 at 10:41:00 AM EST
Alter_Fritz said...: Ray, you don't like that the record companies are "so gay"?
Since the first two links you quote are no links anymore?! :-(; January 6, 2009 at 4:53:00 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