Recording Industry vs The People: July 2008

Thursday, July 31, 2008

Issue has been joined in Capitol v. VideoEgg

The defendant VideoEgg has filed its answer in Capitol v. VideoEgg, asserting affirmative defenses, including the Digital Millenium Copyright Act, Fair Use, Copyright Misuse, Waiver, Estoppel, and Unclean Hands.

Answer of Defendant VideoEgg

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

Wednesday, July 30, 2008

Judges Journal article now available in HTML format

A friend of our blog who wishes to remain anonymous has provided us with an HTML version of the Judges' Journal article:

Beckerman, Ray, "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations", The Judges' Journal, American Bar Association, Summer 2008 Edition (Reprinted by Permission of the copyright owner, The American Bar Association)

Epilogue to Judges' Journal Article

The article I wrote for the Judges' Journal was written primarily in March of this year.

In June I submitted a brief epilogue, specifically referring to the magazine's "Equal Access to Justice" theme, and reporting on some late breaking news. The Judges Journal didn't have room to add it in, but here it is:

New “access to justice” issues arise on a daily basis in these cases.

E.g., in the Capitol v. Thomas case in the District of Minnesota, which resulted in a $222,000 jury verdict, the defendant being represented by a reluctant attorney whose motion for leave to withdraw had been denied, the Judge has now issued an order to the effect that he believes he may set aside the verdict because he committed a “manifest error of law” by having submitted the case to the jury under an improper theory. He stated that both defendant’s lawyer and plaintiffs’ lawyers had failed to bring to his attention a controlling contrary 8th Circuit case. Needless to say, with the right kind of representation, defendant’s counsel would have mentioned the case, and the plaintiffs’ counsel’s duties as officers of the Court would not have been tested. “Judge in Capitol v. Thomas says "manifest error of law" may have been committed by incorrect "making available" instruction”, Recording Industry vs. The People, May 15, 2008.

In the Atlantic v. Andersen case in the District of Oregon, where the RIAA doggedly pursued an obviously innocent defendant for 3 years, ultimately throwing in the towel and being assessed with attorneys fees, the Magistrate Judge awarded only 2/3 of the lodestar, and declined any multiplier. Defendant explains in detail, in her reply declaration* in support of her attorneys fee motion, the difficulty she had experienced in finding a lawyer – any lawyer – to take her case, and argues, in her objections to the Magistrate Judge’s denial of a multiplier, that a multiplier is necessary to encourage lawyers to take on such “undesirable” representations. See defendant’s objections at pp. 7-8. “Parties file objections to Magistrate Judge's attorneys fee award in Atlantic v. Andersen”, Recording Industry vs. The People, May 30, 2008.

And the RIAA’s indiscriminate use of ex parte applications, and many Courts’ indiscriminate granting of such applications without meaningful inquiry into whether they are properly substantiated, continue. Fortunately, we occasionally learn of a court exercising a little bit more skepticism, as in the case of Magistrate Judge Margaret Kravchuk in the District of Maine in BMG v. Does 1-11, a “John Doe” case targeting University of Maine students. Judge Kravchuk had signed ex parte discovery orders on the first two go-arounds, but, when the third lawsuit was launched, apparently realized her mistake, observing, as she could have observed in the first two cases, and as every judge could just as well have observed in every one of the other cases targeting America’s colleges and universities, that “I see no reason for the court to take immediate action in this case as there is no evidence that records are about to be destroyed.” “RIAA brings third proceeding against University of Maine "John Does"; this time Court does not sign ex parte discovery order”, Recording Industry vs. The People, May 29, 2008.

Were I writing the epilogue today I would add this sentence to the last paragraph:

And in a North Carolina case targeting students at NC State, Magistrate Judge Louise W. Flanagan -- who confessed to having signed the ex parte orders in the past -- indicated she was now going to take a "fresh look", in Elektra v. Doe. "North Carolina court to take a "fresh look" at the NC State "John Doe" cases, issues stay of subpoena to NC State in Elektra v. Doe", Recording Industry vs. The People, July 4, 2008.

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
Slashdot
Excess Copyright

Tuesday, July 29, 2008

Tickets go on sale for "Stealing America" premier at Quad Cinema in New York City, August 1st to August 7th

For those of you in New York at any point between August 1st and 7th, and interested in (a) what happened in the 2004 election, and/or (b) good documentary film making, advance tickets for premier of "Stealing America : Vote by Vote", at the Quad Cinema in New York City, can now be purchased online at MovieTickets.com.

ABA Judges' Journal Article: "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations"

The Judges' Journal, the quarterly publication of the Judicial Division of the American Bar Association, invited the author of this blog to write an article for its "Equal Access to Justice" edition.

I of course accepted the invitation, and submitted an article, entitled "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations". In it I describe the RIAA litigation process and the challenge it represents to our adversarial system of justice, and make 15 hopefully constructive suggestions as to how the Courts can help to level the playing field in these cases.

The article has now been published, and is available in the current edition of The Judges' Journal.

The ABA has graciously granted permission to reprint the article, for the benefit of those who are not recipients of The Judges' Journal.

Without further ado, here it is:

Beckerman, Ray, "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations", The Judges Journal, American Bar Association, Summer 2008 Edition (Reprinted by Permission of the copyright owner, The American Bar Association) (PDF)

HTML version

[Ed. note. Thanks to a friend of our blog, who wishes to remain anonymous, for supplying me with the HTML version. -R.B.]

Commentary & discussion:

Wired
Slashdot
p2pnet.net
Daily Nonsense
Privacy Digest
Excess Copyright
Slyck
The Inquirer
El Blog de Enrique Dans (Spanish)
TechDirt
rocknerd

Monday, July 28, 2008

Final judgment entered in Atlantic v. Andersen

After about 3 years of litigation, final judgment has been entered in Atlantic v. Andersen, the Oregon case in which Tanya Andersen, represented by the Washington firm Lybeck Murphy, defeated the RIAA. The judgment awards Ms. Andersen $107,834 in attorneys fees.

July 28, 2008, Judgment

Commentary & discussion:

TechDirt
Numerama (French)
Slyck

Tenise Barker files answer to amended complaint in Elektra v. Barker

Tenise Barker has filed her answer to the amended complaint in Elektra v. Barker.

In her answer she admits that she was using Kazaa, denies some of the allegations of the amended complaint, and interposes the following affirmative defenses:

1. Plaintiffs' damages theory, which argues for statutory damages of from 2,142 to 428,571 times the actual damages, would lead to an unconstitutional result (Parker v. Time Warner Entertainment Co.,331 F.3d 13 (2d Cir. 2003); UMG Recordings, Inc. v. Lindor, 2006 WL 3335048 (E.D.N.Y. 2006); In re Napster Inc., 2005 WL 1287611 (N.D. California 2005)), so that the complaint should be construed as alleging that the use of an "online media distribution system" to infringe plaintiffs' copyrights constituted a single act of infringement, warranting a total recovery of $750 if defendant is liable.

2. In the alternative, the statute should be considered unconstitutional to the extent it could be construed as authorizing more than ten time the actual damages, and recovery should be limited to $3.50 per recording as against a single noncommercial user for a single upload or download of an MP3 file for personal use.

3. Unclean hands based upon plaintiffs' procurement of an unlicensed investigator, and commission of a Class B Misdemeanor under N.Y. General Business Law § 70, as well as unlawful pretexting and invasion of defendant's privacy.

4. Since the amended complaint makes no mention of any enumerated acts of infringement, but instead seeks recovery for a series of acts (the operation of an “online media distribution system” to infringe plaintiffs' copyrights), plaintiffs cannot recover statutory damages, costs, or attorneys fees for any sound recording copyrights registered with the U.S. Copyright Office subsequent to the date on which defendant first began using Kazaa, under 17 U.S.C. § 412. (See, e.g., Homkow v. Musika Records, Inc., 2008 U.S. Dist. LEXIS 14079 (S.D.N.Y. February 26, 2008); Irwin v. ZDF Enters. GmbH, 2006 U.S. Dist. LEXIS 6156 (S.D.N.Y. 2006); Shady Records, Inc. v. Source Enters., 2004 U.S. Dist. LEXIS 26143 (S.D.N.Y. 2004)).

5. Innocent infringement : defendant was not aware of any copyright infringement, and upon information and belief some or all of the copies which she downloaded did not bear copyright notice.

Answer to Amended Complaint
Notice of Constitutional Question

Commentary & discussion:

Slashdot
p2pnet.net
Wired
Daily Nonsense
Afterdawn
Slyck
Adunanza (Italian)

Thursday, July 24, 2008

Memoranda of law in Arista v. Limewire

Plaintiffs finally did get around to filing a memorandum of law, four (4) days after the filing deadline, in Arista v. LimeWire.

Here are the copies of the memoranda of law I have been able to find:

Defendants' first memorandum of law
Defendants' second memorandum of law
Plaintiffs' memorandum of law

Commentary & discussion:

ezee.se

Monday, July 21, 2008

Both sides move for summary judgment in Arista v. Limewire

Papers have been filed in Arista v. LimeWire which appear to be asking for summary judgment.

[Ed. note. We were unable to ascertain, from glancing at them, what the motions are all about. We were unable to find any memorandum of law from the plaintiffs, and the defendants filed two memoranda of law, one with all the substance "redacted". Accordingly, we have not prepared links to these papers, but have put many of the documents online for people who want to spend their time wading through them, in the following directory: http://beckermanlegal.com/Limewire/. However, I do not recommend that you do so. I regret the time and money I spent retrieving these from PACER. I have a hunch there won't be anything interesting until the trial. -R.B.]

Commentary & discussion:

ezee.se

Saturday, July 19, 2008

Materials for Last H.O.P.E. July 19, 2008, talk

If you're attending my talk at the Last H.O.P.E. Conference on July 19th, here are some background materials:

RIAA Expert
Jacobson testimony: no testing, no publishing, no peer review, no nothing
Judge saying he can testify anyway
MediaSentry printouts, part 1
MediaSentry printouts, part 2
Links to complete deposition transcript, plus all exhibits
Direct link to complete deposition transcript
RIAA saying it identifies an individual
RIAA expert witness saying RIAA does not identify an individual

RIAA Investigator
MediaSentry says it is not an expert witness
MediaSentry says it is an expert witness
RIAA says MediaSentry is an investigator
RIAA says MediaSentry is not an investigator
MediaSentry says it is an investigator
MediaSentry says it is not an investigator

Defendant's expert
Expert witness report of Prof. Johan Pouwelse

Substantive law
Atlantic v. Howell (No "making available")
Capitol v. Foster (RIAA's theory of secondary liability "marginal")

Financial
Expert Witness Defense Fund (Managed by Free Software Foundation)

Commentary & discussion:

p2pnet.net
PTBvisiongrrl's Live Journal

Thursday, July 17, 2008

Collection of testimony about not being able to 'detect an individual'

As most readers know, the RIAA has been fond of telling judges that their investigator "detected an individual", which was directly contradicted by the deposition testimony of its expert witness, Dr. Doug Jacobson, at his February 23, 2007, deposition in UMG v. Lindor.

I've prepared a collection of some excerpts from that deposition on that point:

Jacobson on Not Being Able to Detect Individuals

The full transcript of Dr. Jacobson's deposition is here.

Tuesday, July 15, 2008

Is it illegal for a toddler to dance to a copyrighted song?

Electronic Frontier Foundation Media Release

For Immediate Release: Tuesday, July 15, 2008

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org
+1 415 436-9333 x125

Friday Court Hearing in YouTube Video Battle

Home Movie of Toddler Dancing to Prince Sparks Bogus Copyright Claim

San Jose - On Friday, July 18, at 9 a.m., the Electronic Frontier Foundation (EFF) will urge a federal judge in San Jose to protect the free speech and fair use rights of mother who posted a home movie of her son dancing to Prince on YouTube.

EFF represents Stephanie Lenz, who uploaded a 29-second clip of her son dancing in the family kitchen to the Prince song, "Let's Go Crazy," which is playing on a stereo in the background. Remarkably, Universal Music Publishing Group claimed that the video infringed its copyrights, and had the video yanked from YouTube. Lenz's lawsuit against Universal seeks to hold the company accountable for misrepresenting that her fair use violated its copyrights.

In Friday's hearing, EFF will ask U.S. District Court Judge Jeremy Fogel to reject Universal's motion to dismiss the case, and allow Lenz's lawsuit to continue.

WHAT:
Lenz v. Universal

WHEN:
Friday, July 18
9 a.m.

WHERE:
U.S. District Court, Northern District of California Courtroom 3, 5th Floor 280 South 1st Street San Jose, CA 95113

For this release:
http://www.eff.org/press/archives/2008/07/15

About EFF

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/

Commentary & discussion:

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boing boing
ezee.se
webbits

Monday, July 14, 2008

Tiffany's loses case against eBay

It's off topic for this blog, but I thought many of my readers would be interested in knowing that Tiffany's lost its trademark infringement case against eBay.

The court held that "it is the trademark owner's burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring on their websites".

July 14, 2008, Decision, Hon. Richard J. Sullivan

Commentary & discussion:

Associated Press
Reuters
Wendy.Seltzer.org
Ars Technica
Slashdot
Slashdot (NYCL Journal)

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