Recording Industry vs The People: August 2008

Thursday, August 28, 2008

Io v. Veoh copyright case dismissed based on video-sharing website's compliance with DMCA

Thanks to Kip Patterson for bringing this to my attention.

In a California copyright infringement case, Io Group v. Veoh Networks, the Court has granted the defendant's motion for summary judgment, on the basis of the Digital Millennium Copyright Act ("DMCA"), holding that the defendant's video-sharing web site complied with the DMCA and was entitled to the protection of the statute's "safe harbor" provision.

In its 33-page decision, the Court noted, among other things, that the DMCA was "designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age", and rejected that plaintiff's contention that Veoh had failed to reasonably impement its notification policy for repeat offenders.

Interestingly, Viacom -- which is suing YouTube in Viacom v. YouTube in a very similar case -- tried to submit an amicus curiae brief in Io v. Veoh; Judge Lloyd denied its request.

August 27, 2008, Order and decision granting defendant's motion for summary judgment
Order denying Viacom motion for leave to file amicus curiae brief

Commentary & discussion:

Reuters
Slashdot
p2pnet.net
Afterdawn.com (Finnish language version)

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 portable music player

Wednesday, August 27, 2008

Motion for sanctions to be granted in Atlantic v. Howell

According to a minute entry in Atlantic v. Howell, the Court will be granting the RIAA's motion for sanctions based on spoliation of evidence.

The entry reads as follows:

The Court finds that the destruction of the evidence after repeated and explicit warnings about the obligation to preserve evidence was in bad faith and therefore warrants appropriate sanctions. The extent of sanctions is within the Court’s discretion. The Court will issue a written order on the pending issues. The Motion for Sanctions is taken under advisement. A written order will issue regarding the pending Motions to Dismiss.

According to an article in Ars Technica, the RIAA has won the case.

August 25, 2008, Minute Entry

Found via Ars Technica.

Commentary & discussion:

p2pnet.net
p2pnet.net

Tuesday, August 26, 2008

Discovery schedule established in Atlantic v. Boyer

In Atlantic v. Boyer, the Tampa, Florida, case in which the legal sufficiency of defendant's counterclaim for civil conspiracy to commit crimes, and other counterclaims, has been upheld, the RIAA has filed its answer to the counterclaims, the parties have submitted a joint case management report, and a scheduling order has been entered calling for a pretrial statement to be filed in May, 2009.

Answer to counterclaims
Case management report
Scheduling order

Monday, August 25, 2008

No discovery schedule at this time in Warner v. Cassin

Judge Robinson has ruled that no discovery schedule will be set at this time in Warner v. Cassin.

The RIAA had requested a discovery schedule, defendant had opposed it.

August 25, 2008, Order ruling that no discovery schedule will be set at this time

Sunday, August 24, 2008

Linares declaration evolving to evade detection?

One of our readers, who wishes to be known only as "Concerned Citizen", did an analysis of the Linares declaration filed recently in LaFace v. Does 1-7 in Michigan, comparing it to the Linares declaration used in an earlier Michigan case, LaFace v. Does 1-5. These were Concerned Citizen's findings:

There are some changes that have been made in the Carlos Linares Declaration from last September 11. 2007 (LaFace v. Does 1-5 NMU) and the Current July 8, 2008 LaFace v. Does 1-7 U of M. version. They include the following changes.

(1). "I am an attorney and...", to Linares opening statement. Not a big surprise , but per Michigan's new Professional Investigator law, the attorney needs to be licensed to practice law "in Michigan" in order to exempt an investigator for the requirement of licensing.

(2) the Addition of "Allows users to further distribute files to other users..." in paragraph # 7 section 4

(3) the addition of "In some cases more that one computer can access the internet over a single IP address by using Network translation..." in Paragraph 12 page 5

(4) Removal of the word "Illegal" and "downloaded music files" from the most recent declaration Paragraph 15. In the September 2007 version as Linares referred to the copies as "Illegal copies of sound recordings", but that language has now been changed to "copies of sound recordings" (the word Illegal does not appear in the most current declaration anywhere that I could find)

(5) Replaced the term "Offered for download" and "were offered" with "Distribute" the new boilerplate language.

(6) Added a new paragraph # 24 to the mix claiming that "...Fourth, computer evidence by its very nature is subject to being overwritten. At times, plaintiffs have sought evidence from defendants computers only to find that the evidence of infringement was destroyed (intentionally or unintentionally). Expedited discovery is critical to allow Plaintiffs to put Defendants on notice of the need to preserve the electronic evidence and avoid the loss of evidence.

Friday, August 22, 2008

MediaSentry ignored DLEG investigation in Michigan, continued investigating without license

We have learned, from court papers filed in a Michigan "John Doe" case, LaFace v. Does 1-7, that MediaSentry continued conducting Michigan investigations without a license even after it was being investigated for that practice by Michigan's Department of Labor and Economic Growth an investigation in which it has made false and inconsistent statements.

Complaint in LaFace v. Does 1-7

Commentary & discussion:

p2pnet.net
Slashdot
Ars Technica
Digital Copyright Canada

Warner v. Cassin "John Does" "related case" motion to be heard on September 5th

A hearing has been scheduled in Warner v. Does 1-4, the "John Doe" case which the RIAA commenced after submitting a notice of dismissal of Warner v. Cassin. The hearing is for oral argument of Ms. Cassin's motion to designate the cases as "related", which the RIAA previously indicated it did not oppose.

The Judge's chambers telephoned plaintiffs' counsel and indicated that the parties should file a notice of motion. Ms. Cassin's notice of motion was filed today.

Notice of motion by Joan Cassin to designate case as related to Warner v. Cassin

Have copyright owners gone mad?

I was just reading this article on The Industry Standard, Is the RIAA targeting the Electronic Arts-owned Sims karaoke site?, and thought to myself: "Have the content owners gone completely mad? Are they actually trying to destroy our love of music?"

-R.B.

Thursday, August 21, 2008

Motion to dismiss complaint denied in case against Universal Music over misrepresentation in DMCA notice

David Kravets of Wired.com reports that, in Lenz v. Universal, the case against Universal Music based upon its issuance of a false DMCA notice, the defendant's motion to dismiss the complaint has been denied.

The court held that in issuing a DMCA notice, one must take into account whether the use is a "fair use" under the Copyright Act.

We first learned of the Wired.com report through Slashdot.

Commentary & discussion:

Switched

Audrey Amurao files answer in Lava v. Amurao II

In the case against Rolando Amurao's daughter, Lava v. Amurao II, the defendant has filed her answer, containing a number of affirmative defenses.

Answer

As in Elektra v. Barker, defendant is challenging the constitutionality of the RIAA's statutory damages theory, and will be filing a Notice of Constitutional Question.

Wednesday, August 20, 2008

Counterclaims dismissed in Missouri case, Atlantic v. Raleigh

We have just learned of a case that has been pending in Missouri since November, 2006, Atlantic v. Raleigh.

The complaint is one of the RIAA's old-style "making available" complaints, since it was filed almost a year before Interscope v. Rodriguez.

The answer contains information about the facts of the case, and interposed a number of counterclaims. However, the counterclaims were dismissed by the Court in an order dated August 18, 2008.

From an examination of the docket it appears that discovery has been on hold, and the parties are now scheduled to appear at a conference on September 11th.

Complaint
Answer and Counterclaims
August 18, 2008, Order and Opinion Dismissing Counterclaims
August 19, 2008, order scheduling conference September 11, 2008

RIAA executive Kenneth Doroshow moves from record industry to gaming industry

I guess we may have to rename this blog "Gaming Industry vs. The People" some day, as we have just learned that Kenneth Doroshow -- the RIAA executive who was supposed to debate the statutory damages issue with me back in March, but who chose to avoid that subject and instead recounted his opinion of the facts in Capitol v. Thomas, and who later inserted some paper he'd written into the transcript of the conference instead of allowing his talk to be reported -- has left the RIAA and joined the ESA (the "Entertainment Software Association").

If he accomplishes for game manufacturers what he accomplished for the recording industry, I would say the industry's prospects are bleak.

Commentary & discussion:

p2pnet.net
Slashdot
GamePolitics.com
p2pnet.net

Judge Trager dismisses counterclaims and copyright misuse defense in Elektra v. Torres and Maverick v. Chowdhury

All of the counterclaims, and the copyright misuse defense, asserted by defendants in Elektra v. Torres and Maverick v. Chowdhury, both cases pending in Brooklyn against Queens defendants, have been dismissed by Judge David G. Trager.

August 19, 2008, Decision Dismissing Counterclaims and Defense

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