Recording Industry vs The People: June 2008

Monday, June 30, 2008

Parties file their briefs in Capitol v. Thomas

In Capitol v. Thomas, the plaintiffs and the defendant have filed their briefs in response to Judge Davis's May 15th order.

The US Department of Justice took no position on the issue.

[Ed. note. I hope the answer to the following question is "yes": Has a single one of the briefs that's been filed on behalf of Jammie Thomas pointed out to the Judge that Atlantic v. Howell had been vacated a week BEFORE her trial?]

[Ed. note. Another odd thing about the brief Mr. Toder submitted on behalf of Ms. Thomas is that it states that the Judge, in his May 15, 2008, decision, brought the April 29, 2008, decision in Atlantic v. Howell to the attention of the parties. What is that about? The RIAA lawyers knew on September 27, 2007, about the September 27, 2007, decision, and they knew on April 29, 2008, about the April 29, 2008, decision.]

Defendant's brief in support of new trial
Plaintiffs' brief opposing new trial
Notice from US DOJ that it takes no position
May 15, 2008, Order indicating possible manifest error of law
September 27, 2007, Order Granting Reconsideration and Vacating August 20, 2007, Order in Atlantic v. Howell

Commentary & discussion:

Wired.com
LA Times
p2pnet.net (Digest of Capitol v. Thomas stories)
Ars Technica
Online Media Daily
AzOz

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

A note about possible problems with *pdf documents hosted by ILRWeb

The folks at Internet Law & Regulation, who for the past several years have been hosting the majority of the litigation documents to which this site links, are conducting some work on their servers. As such, we are experiencing technical difficulties with those *pdf files which are at ilrweb.com.
Until this problem is resolved, I am (a) uploading the new documents as they come in to my law firm web site where they can be reached at the link provided, (b) migrating selected older "ilrweb" documents to that site, and (c) migrating any documents requested by my readers. A list of links on my law firm web site, alphabetical by file name, is here. For the migrated copies which have "ilrweb" URL's, just replace
www.ilrweb.com/
viewILRPDF.asp?filename=withbeckermanlegal.com/Documents/and add .pdf to the end of the file name, and you'll have a working link to the document. For example, this should be changed to this. If you would like to see documents which haven't been uploaded to beckermanlegal.com yet, please email me your request and I will get them there. No anonymous requests will he accepted. Thanks. -R.B.

Thursday, June 26, 2008

Scholarly article on "making available"

Wired.com is hosting a scholarly article on the "making available" issue, entitled "Future Shock and the Copyright Act of 1976: Is Merely Making a Copyrighted Work Available for Digital Transmission a Violation of § 106(3)? (pdf), by Draeke Weseman, a third-year law student at William Mitchell College of Law, in Minnesota.

Wednesday, June 25, 2008

$107,834 attorneys fee award in Atlantic v. Andersen affirmed by District Judge

In Atlantic v. Andersen, the District Judge has rejected the objections of both sides, and adopted the Magistrate Judge's report and recommendation awarding Tanya Andersen $107,834 in attorneys fees and disbursements.

June 24, 2008, order adopting Magistrate's report awarding defendant $107,834 in attorneys fees and disbursements

Commentary & discussion:

p2pnet.net
Wired
Ars Technica
G4 TV
Afterdawn.com
Digital Media Wire
The Industry Standard

Tuesday, June 24, 2008

Summary judgment motion briefing schedule set in Arista v. LimeWire

In Arista v. LimeWire, a briefing schedule has been set by the Court for upcoming summary judgment motions. Motions are to be filed by July 18th, and briefing is required to be completed by October 8th.

June 23, 2008, scheduling order for dispositive motions

Berkman Center seeks college student RIAA targets to interview

The Berkman Center for Internet and Society @ Harvard University is looking for student-age defendants of RIAA legal actions to share their experiences in a recorded audio or video interview (either in person or through a video chat).

Berkman's Digital Natives Project, which investigates issues at the intersection between technology and youth culture, is putting together a series of educational videos for use in a copyright curriculum.

We're looking to teach a nuanced view of creativity, copyright, and sharing. We are also putting together a podcast series on "Digital Natives" issues and may be interested in the possibility of using potential interview materials for that as well.

Interested? Have questions?
Send an email to John Randall (jrandall@cyber.law.harvard.edu)
http://www.digitalnative.org/
http://cyber.law.harvard.edu/

Commentary & discussion:

p2pnet.net

Sunday, June 22, 2008

Interscope v. Does 1-7 ruling reversed

First learned of this from WAVY.com.

In Interscope v. Does 1-7, the Newport News, Virginia, case, targeting 7 students at the College of William and Mary, Judge F. Bradford Stillman has reversed the earlier ruling of Judge Walter D. Kelley, Jr., denying the RIAA's ex parte motion, and has now granted the motion.

No defendants appeared in the action; neither the defendants nor the College were given notice of the application. It is still possible that once the subpoena is issued and served, either the college, or the students, or both, could make a motion to quash.

The court's docket entry reads as follows:

Minute Entry for proceedings held before Magistrate Judge F. Bradford Stillman: Motion Hearing held on 6/20/2008 re 7 MOTION for Reconsideration filed by Atlantic Recording Corporation, Warner Bros. Records Inc., Laface Records LLC, Elektra Entertainment Group, Inc., Sony BMG Music Entertainment, Virgin Records America, Inc., Capitol Records, Inc., Interscope Records, BMG Music, UMG Recordings, Inc., Arista Records LLC. Present were Katheryn Coggon and Michael Zito, counsel for the plaintiffs. Court notes that there are parallel motions in both this case and 2:08cv90. Counsel agrees. Court consolidates these matters under 2:08cv90. Judge Morgan will be the presiding Judge. Court addresses the motion for leave to file Amicus Curia Brief (#8) in 4:07cv52 and denies that motion for counsels failure to move the motion within thirty days according to the local rules. Court finds there is no prejudice in doing so as all of counsels briefs are contained in the record. Court allows a sixty day extension of time for service on the defendants in this matter. Court hears argument on the motion for reconsideration and makes rulings from the bench and grants the motion. The Court finds that the scope of the subpoena is narrow enough that he will allow it to be issued. Court to enter written opinion and order in this matter. Court adjourned. (Court Reporter Paul McManus, OCR.)THIS IS A TEXT ONLY ENTRY. NO PDF DOCUMENT IS ATTACHED. (cdod) (Entered: 06/20/2008)

Commentary & discussion:

p2pnet.net

Unlicensed investigation complaint filed against MediaSentry in North Carolina

In court papers filed in BMG v. Doe 1 in North Carolina, it was revealed that a North Carolina State University "John Doe" has filed an unlicensed investigation complaint against MediaSentry with the North Carolina Private Protective Services Board, the agency which regulates private investigators in North Carolina.

Doe response in BMG v Doe 1
Doe brief in Elektra v. Doe
Stephen Robertson affidavit in Elektra v. Doe

Saturday, June 21, 2008

Amicus curiae briefs filed in Capitol v. Thomas

In Capitol v. Thomas, a number of groups have accepted Judge Davis's invitation to submit amicus curiae briefs on the issue of whether a manifest error of law was committed when the jury was instructed that Jammie Thomas could be liable for just 'making files available'. The deadline for filing of amicus briefs was Friday, June 20th at noon.

Here's a list of the briefs that were filed:

In favor of the RIAA position:

Amicus brief of Thomas D. Sydnor II of Progress & Freedom Association
Amicus brief of Motion Picture Association of America

In favor of Jammie Thomas's position:

Amicus brief of 10 copyright law professors
Amicus brief of Intellectual Property Institute of William Mitchell College of Law
Amicus curiae brief of Electronic Frontier Foundation, Public Knowledge, US Internet Industry Association, and Computer & Communications Industry Association

Here's a list of the ten copyright law professors:

Notice of appearance of ten copyright law professors

Commentary & discussion:

Slashdot
Wired
Ars Technica
BroadbandReports.com
Digital Media Wire
p2pnet.net
Ars Technica
Afterdawn.com
C/Net News
p2pnet.net
BetaNews
Patry Copyright Blog (MPAA brief)
Patry Copyright Blog (PFF brief)
LiveJournal (Russian)
Heise Online
LA Times
G4TV
Wired
Audioholics
Electronic Frontier Foundation
University of Minnesota Law School

Friday, June 20, 2008

Announcement: I have formed my own firm, Ray Beckerman, P.C.

I am pleased to announce that I have formed my own law firm, Ray Beckerman, P.C., where I will continue my practice representing and advising small and medium sized businesses and individuals.

My good friend Ty Rogers, who has been working with me for most of the last 12 years, and who has been working on the RIAA cases since we first started with them in 2005, will continue with Vandenberg & Feliu, LLP.

Thanks.

Best regards.

Ray

(Attorney advertising)

Wednesday, June 18, 2008

RIAA wants to 'throw in the towel' in UMG v. Lindor

In UMG v. Lindor, the 3-year-old Brooklyn case against a home health aide who has never used a computer, the RIAA is now making a motion to voluntarily dismiss the case without prejudice.

Additionally, the motion will seek:

-discovery sanctions against Ms. Lindor;
-discovery sanctions against Ray Beckerman, her attorney; and
-a stay of all proceedings.

June 17, 2008, Letter of Eve G. Burton to Hon. Robert M. Levy

Commentary & discussion:

p2pnet.net
Ars Technica
p2pnet.net
Brooklyn Law School Library Blog
VaGla.pl (Polish) (General discussion of 'throwing in the towel' cases)
Afterdawn.com

To contribute to Marie Lindor's legal defense, see below.
The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.

Monday, June 16, 2008

RIAA responds to letters in Cassin cases

In Warner v. Cassin, and its new companion case Warner v. Does 1-4, the RIAA has responded to the June 12th letters submitted by defendant's lawyer.

June 16, 2008, Letter of Victor B. Kao to Hon. Charles L. Brieant
June 16, 2008, Letter of Timothy Reynolds to Hon. Stephen C. Robinson

Commentary & discussion:

Wired
p2pnet.net

Media Sentry responds to reconsideration motion in UMG v. Lindor

In UMG v. Lindor, MediaSentry has submitted a response to Ms. Lindor's reconsideration motion concerning the Magistrate Judge's preliminary order indicating denial of defendant's motion to compel MediaSentry to respond to the subpoena duces tecum which had been served upon it in November 2007.

June 16, 2008, Letter of Thomas M. Mullaney to Hon. Robert M. Levy

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