Recording Industry vs The People

I urge every informed reader who lives in the United States to write to his or her Congressman to urge rejection of the RIAA-backed Pro-IP Act, which does the exact opposite of what Judge Davis has urged Congress to do.

The matter is of extreme urgency because the Senate has passed the bill unanimously.

Thanks to Slashot for the information.

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In Arista Records v. Lime Wire, an amicus curiae brief has been submitted on the issue of 'secondary liability' and the 'inducement' rule, by the following organizations jointly:

-Electronic Frontier Foundation;
-Center for Democracy and Technology;
-Computer & Communications Industry Association;
-Consumer Electronics Association;
-Home Recording Rights Coalition;
-Information Technology Association of America;
-Public Knowledge;
-Special Libraries Association; and
-U.S. Internet Industry Association.

Although the brief states that it is submitted on behalf of "neither party", it takes issue with arguments made by plaintiffs in connection with the parties' summary judgment motions.

Amicus curiae brief of EFF and 8 other organizations

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In Capitol v. Thomas, District Judge Michael J. Davis has set aside the jury's $222,000 verdict and ordered a new trial, ruling that his jury instruction -- which accepted the RIAA's "making available" theory -- was erroneous. He also rejected the 'offer to distribute' theory.

Although he did not formally reach the arguments going to the excessiveness of the damages, he had this to say on the subject:

Need for Congressional Action

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 such as the one currently before this Court. The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market. Cf. Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 42 737, 741, 42 (D. Md. 2003) (describing defendants as a “global financial services firm” and a corporation that brokers securities).

While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.

Thomas not only gained no profits from her alleged illegal activities, she sought no profits. Part of the justification for large statutory damages awards in copyright cases is to deter actors by ensuring that the possible penalty for infringing substantially outweighs the potential gain from infringing. In the case of commercial actors, the potential gain in revenues is enormous and enticing to potential infringers. In the case of individuals who infringe by using peer-to-peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence.

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.

September 24, 2008, decision setting aside verdict

Commentary & discussion:

Electronic Frontier Foundation
p2pnet.net
Wired.com
Associated Press (Via Minneapolis Star Tribune)
Slyck
Ars Technica
Heise Online (German)
Digital Music News
Wall Street Journal
Digg
PC World
Duluth News Tribune
Slashdot
ZeroPaid
Broadband DSLReports.com
Good Morning Silicon Valley
eFlux Media
Download Squad
Wired.com (9/25)
engadget
electronista
ReadWriteWeb
ZDNet (9/25)
Hack in the Box
Torrent Freak
Digital Trends
CD Freaks
The Josh Kagan Blog
TechRadar.com
Gizmodo UK
GroundReport
Gazetapa.pl Technologie (Polish)
Illinois Business Law Journal

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We have just learned of a case in Philadelphia, SONY BMG Music v. Cloud, where the defendant moved to dismiss the complaint or for a more definite statement, the Court denied the motion, and the defendant has moved for reconsideration, or for the certification of an interlocutory appeal.

August 22, 2008, decision denying motion to dismiss
Defendant's motion for reconsideration, memorandum of law
Defendant's motion for reconsideration, part 1 of exhibits
Defendant's motion for reconsideration, part 2 of exhibits

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We have recently learned that the class action which had been commenced in Chicago, in 2006, against Kazaa, Lewan v. Sharman, was quietly settled, last Fall, in an off-the-record settlement.

Docket Entry indicating case had been settled

Commentary & discussion:

p2pnet.net

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Thanks to Prof. Deirdre M. Smith of the University of Maine Law School, and the faculty advisor for its Cumberland Legal Aid Clinic, for bringing this law review note to my attention:

A thoughtful article has appeared in the Minnesota Journal of Law, Science & Technology, a publication of the University of Minnesota School of Law, authored by law student Daniel Reynolds.

It begins:

The Recording Industry Association of America (RIAA)’s lawsuit campaign against copyright-infringing file sharing is controversial. Many critics allege that this campaign is unfair and paint the RIAA as mean and a bully. Some critics even claim that the RIAA is subversive toward the rights of the public. At the same time, any file sharers continue to violate the distribution and reproduction rights of copyright holders, record labels, and artists, all who have justified expectations of payment for heir products.

This Note examines the RIAA’s approach and alternative approaches to the file sharing problem, and proposes an integrated, comprehensive strategy for dealing with the problem of illegal file sharing. Part I provides a background on the RIAA and its opinions, the development of the RIAA lawsuits, the public backlash against these lawsuits, and the relevant law. Part II describes the challenges to be met by any solution to the file sharing problem, reviews a series of proposals for their strengths and weaknesses, and sets forth a strategy that balances the strengths of a number of previous proposals against each other’s weaknesses. This Note concludes with the assertion that the file sharing problem is solvable without wasteful, unpopular lawsuits or major changes to the law, provided that the music industry is willing to adapt to and take cues from the consuming public.

Complete article:
Reynolds, Daniel. Note. The RIAA litigation war on file sharing and alternatives more compatible with public morality. 9 Minn. J. L. Sci. & Tech. 977-1006 (2008).

Commentary & discussion:

Art Law for Everyone

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The San Antonio, Texas, case of Maverick Recording Co. v. Harper, in which the RIAA is pursuing a young lady who was 16 years of age at the time of the alleged infringement, will proceed to a jury trial on November 17th over the issue of whether she is entitled to the innocent infringement defense, which might reduce the statutory damages from $750 to $200.

The judge has previously ruled that the RIAA must proceed to trial on this issue unless it were willing to accept $200 per infringement, since there are many material factual issues that must be decided by the jury.

This will be only the second known jury trial in the RIAA litigation campaign, and the first to focus on the innocent infringement defense.

The trial is scheduled as follows:

When: Monday, November 17, 2008, 9:30 A.M.
Where: John H. Wood, Jr., Courthouse
Courtroom #3, First Floor
655 East Durango
San Antonio, Texas

The trial is open to the public.

Notice of Trial

Commentary & discussion:

p2pnet.net
Ars Technica
Daily Online Examiner
Boing Boing
Geeks Are Sexy

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In UMG Recordings v. Lindor, the RIAA has made a motion to voluntarily dismiss its case without prejudice, and for "discovery sanctions" against defendant and her counsel.

Plaintiffs' memorandum of law in support of motion for voluntary dismissal without prejudice
Exhibits A to I
Exhibits J to Q
Exhibits R to V

Commentary & discussion:

Wired.com
Slashdot
Techdirt
Broadband Reports
ZeroPaid
Ars Technica
Electronista
PrefixMag.com
p2pnet.net
gulli (German)
Excess Copyright
ezee.se
Afterdawn.com
Numerama (French)
adslgr.com (Greek)
Punto Informatico (Italian)
The iPod Observer
Privacy Digest
Digital Media Wire
CrimLaw
Paragon Forums
Heise Online (German)
WinFuture (German)
Overlawyered
Computer Base (German)
Idolator
Silicon Alley Insider
Hitsville
Computer World
YouTube Robot
Bluetack Internet Security Solutions
Internet Patrol
Blog for One
White Noise
CD-R (Czech)
IPKat
Info World
Hollywood Reporter ESQ
Tynan on Tech
Daily Online Examiner
Quart (Hungarian)
E-dribble
Free Software Daily
Scholars & Rogues
Legal Blog Watch
IP Notiz (German)
Popehat
Overlawyered
PC World
ipwars.com
Remixtures (Portugese)
THR, Esq


[Ed. note. Many supporters have asked how they can help financially. Anyone who wants to contribute to Ms. Lindor can do so here and click "Donate". Anyone who wants to contribute to the Expert Witness Defense Fund, which helps people like Ms. Lindor with hiring experts and tech consultants can do so here. Anyone who wants to contribute to me, to help me with the work I do in my blogging and getting the word out, can do so here, clicking the "Donate" button. Another way to help out my blog is to make purchases of goods or services through the affiliate ads I post on the blog. If there are any merchants, products, or services not represented there which you would make a purchase from, let me know by posting a comment to this post, and I'll try to get affiliate ads posted for them. Thanks to all for the tremendous outpouring of support. -R.B.]

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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.

In another "throwing in the towel" case, this one in Cincinnati, Ohio, Elektra v. Licata, the Magistrate Judge has (a) granted the RIAA's motion for voluntary dismissal without prejudice, (b) denied defendant's motion for attorneys fees, and (c) denied Mr. Licata's motion to dismiss the complaint as "moot".

The Magistrate Judge reasoned that Mr. Licata had the duty to inform plaintiffs sooner that his children were planning to "take the Fifth Amendment".

Mr. Licata has filed objections to the Magistrate Judge's decision, which will be determined by the District Court Judge.

Decision of Magistrate Judge Allowing Voluntary Dismissal Without Prejudice
Defendant's Objections to Decision of Magistrate Judge

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

Action Alert from Public Knowledge:

Action Alert: Tell the Senate to Hold Up the Enforcement Bill

Last week, the Senate Judiciary Committee gave the green light to S. 3325, the Enforcement of Intellectual Property Act of 2008. We need you to show them the red light, NOW! This intellectual property enforcement bill lets the DOJ enforce civil copyright claims and lets the government do the MPAA and RIAA’s copyright enforcement work for them—at the taxpayers’ expense.

CLICK HERE TO CALL THE SENATE JUDICIARY MEMBERS NOW

CLICK HERE TO SEND YOUR MEMBERS A FAX

By allowing the federal government to sue infringers in civil court, the DOJ would be asking a court for monetary damages on behalf of content owners. In a civil suit brought by the government, the defendant loses many of the protections he possesses in a criminal action—including his right to free legal representation. What’s more, the government’s legal burden of proof is lower: the government only needs to prove infringement with a “preponderance of the evidence,” meaning that it’s more likely than not that infringement occurred, as opposed to the usual criminal standard of “beyond a reasonable doubt.”

Does the content industry need this help from the Department of Justice? Absolutely not! In the last five years, the RIAA filed or threatened more than 30,000 suits against alleged infringers. If the Enforcement bill passes, not only will the number of such suits increase—they’ll also be paid for with your tax dollars.
Now, the bill’s backers are pushing to have it pass the Senate as early as today via a streamlined procedure, without the full Senate voting on the measure. Tell members of the Senate Judiciary Committee that you don’t want your tax dollars spent on DOJ’s civil enforcement of copyright, and to put a hold on the bill.


CLICK HERE TO CALL THE SENATE JUDICIARY MEMBERS NOW

CLICK HERE TO SEND YOUR MEMBERS A FAX

To learn more about the Enforcement bill:
• See this blog post
• Read the letter from 12 concerned public advocacy groups
• And learn more about the bill at OpenCongress
________________________________________
Public Knowledge
1875 Connecticut Ave, NW
Suite 650
Washington, DC 20009
License: CC BY-SA

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Interesting article on URLWire:

Singer Songwriter Tom Fox Offers Legal Free MP3 Downloads

Tom Fox is an award-winning international guitarist, singer and songwriter who has come up with a simple solution to the problem of digital distribution of his music: Give it away.

Guitarist, singer and songwriter Tom Fox is one of a small but growing group of artists giving away music for free rather than charging or having fans fined for stealing it. On his Web site at foxtunes.com, Tom has made CDs of free music downloads available, including songs from "Midnight Rain" (which was nominated for two independent music awards) and "Slowly" (which garnered radio spins on both sides of the Atlantic).

When asked about the wisdom of giving his music away for nothing, Tom replied, "Many musicians are so afraid of losing out on a 99 cent iTunes sale that they forget that giving away music free and legally has promotional value.”

“Offering free MP3s can accelerate the growth of your online listener base, which ultimately can generate exposure in the form of gig offers, Internet and satellite/terrestrial radio play (generating royalties) and traffic to your site," he said.

Complete article

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

In a new case, targeting students at the State University of New York's Albany, New York, campus, two "John Doe" students -- one of them named twice as different John Does -- have joined together, hired an attorney, and made a motion to quash the RIAA's subpoena seeking their, and other students', identities, in Arista Records v. Does 1-16.

The defendants' motion argues that:

-the plaintiffs have failed to make a sufficient showing to overcome the defendants' First Amendment right of anonymity;

-the plaintiffs failed to make a showing that the Court would have personal jurisdiction;

-the plaintiffs' case is based on evidence that was illegally procured;

-the rules do not authorize the joinder of the defendants in a single action; and

-the Court should award attorneys fees to defendants.

In his "Preliminary Statement", defendants' counsel wrote:

This litigation campaign has been seriously detrimental to the administration of justice and the public policy need to establish clear boundaries to copyright law. Repeatedly, the RIAA has used questionable and illegal investigations, unsupported and erroneous legal theories, and hardball and abusive litigation tactics against individuals who, it may safely be assumed, do not normally find themselves forced to defend their personal use of computers in federal courts. These individuals have the choices of paying the RIAA’s non-negotiable pre-litigation settlement demand (usually between $3000 and $5000), or defaulting, or defending themselves, either pro se or with counsel, if they can afford it. Few can. The RIAA has sued mostly working-class individuals, students, children, the disabled, the homeless and even the dead. They have frequently sued entirely innocent persons and are quite cavalier about the burden they impose on the legal process and the federal judiciary, and the effects of such frivolous suits on their defendants. Moreover, they are apparently in contempt of a district court’s order forbidding them from bringing actions against unrelated individuals, contrary to the joinder provisions of F.R.Civ.P. 20 and 21. See In re Cases Filed by Recording Companies” ILRWeb (P&F) 3053 (W.D.Tex. Nov. 17, 2004)(“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.”). Yet they have done precisely that, hundreds if not thousands of times.

Defendants' Memorandum of Law in Support of Motion to Quash Subpoena

Commentary & discussion:

p2pnet.net

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In one of the Portland, Maine, cases targeting students at the University of Maine, Arista v. Does 1-27, where a group of 8 students are represented by the MittelAsen law firm, and 2 other students are represented by student attorneys from the University's Legal Aid Clinic, oral argument was held on Friday, according to a report from the Bangor Daily News.

Student attorney Jason Rayne, a law student at the University of Maine, working with the Cumberland Legal Aid Clinic, argued the motions on behalf of the students represented by his clinic.

Prominent Portland attorney Bob Mittel argued on behalf of the students represented by his firm.

Defendants filed a supplemental memorandum, reminding the judge that only admissible evidence is permitted to be considered.

Defendants' Supplemental Memorandum

Commentary & discussion:

p2pnet.net

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The very first case which squarely addressed the issue of whether or not the RIAA's "making available" theory stated a claim for relief under the Copyright Act was a Connecticut case, Atlantic v. Brennan. The District Court of Connecticut rejected the theory, and for that reason along with a number of others, denied the RIAA's unopposed motion for default judgment. The RIAA moved for reconsideration, and that motion was rejected as well.

The RIAA thereafter filed an amended complaint and (allegedly) served it in July.

Now the RIAA has re-started the default judgment process, completing the first step which was to get the Clerk of the Court to enter an order certifying that the defendant is in default. The RIAA has 30 days to file a new motion for default judgment. The Clerk's minute entry reads as follows:

09/15/2008 ORDER granting, for failure to appear or respond to amended complaint 29 Motion for Default Entry 55(a) Motion for default judgment due by 10/15/2008. A Motion for Default Judgment pursuant to FRCP 55(b) shall be filed or this action will be dismissed by the Clerk pursuant to Rule 41(b) FRCP. Signed by Clerk on 9/15/08. (Torday, B.) (Entered: 09/15/2008)

It remains to be seen what kind of application it will make for a default judgment, and how it will be received by the Court.

In a landmark February 13, 2008, decision reported at 534 F. Supp.2d 278, District Judge Janet Bond Atherton soundly rejected the RIAA's theory that the fact that song files are "available" on someone's computer constitutes an infringement of the 17 USC 106(3) distribution right, and denied the RIAA's unopposed motion for a default judgment, holding that:

[W]ithout actual distribution of copies.... there is no violation [of] the distribution right.” 4 William F. Patry, Patry on Copyright § 13:9 (2007); see also id. N. 10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)(affirming the district court’s finding “that distribution requires an ‘actual dissemination’ of a copy”).

Because of that, and because the balance of the complaint failed to satisfy the pleading standards of Bell Atlantic v. Twombly, – U.S. –, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007), the Court agreed with Interscope v. Rodriguez, 2007 WL 2408484 (S. D. Cal. August 17, 2007) that the complaint would not survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

Additionally, Judge Atherton had held that the defendant had numerous other possible defenses:

In other similar cases brought by these Plaintiffs and other record labels,individual defendants have raised a host of colorable defenses; but due to the varying procedural postures, the viability of these defenses has largely yet to be conclusively determined. The defenses which have possible merit include: (1) whether the amount of statutory damages available under the Copyright Act, measured against the actual money damages suffered, is unconstitutionally excessive, see UMG Recordings, Inc. v. Lindor, No. 05-1095, 2006 WL 3335048, at *3(E.D.N.Y.2006) finding the defense non-frivolous); Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 588 (6th Cir.2007) (rejecting the defense as to a 44:1 damages ratio); see generally Blaine Evanson, Due Process in Statutory Damages, 3 Geo. J.L. & Pub. Pol'y 601, 637 (2005); FN2 and (2) whether the Plaintiffs and their recording industry peers, by bringing infringement suits like this one, have engaged in anticompetitive behavior constituting copyright misuse, see Lava Records LLC v. Amurao, No. 07-321 (S.D.N.Y. Jan. 16, 2007) (motion to dismiss copyright misuse counterclaim pending); Assessment Techs. of WI, LLC, v. WIREdata, Inc., 350 F.3d 640, 647 (7th Cir.2003) "The doctrine of misuse prevents copyright holders from leveraging their limited monopoly to allow them control of areas outside the monopoly.")

The RIAA had moved for reconsideration; Judge Atherton denied that motion as well, despite having heard one-sided oral argument by the RIAA's lawyers.

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"John Doe #5", a student at Northern Michigan University who is representing himself without the help of legal counsel, has filed papers responding to the RIAA's recent "objections", in LaFace Records v. Does 1-5, in Michigan.

In his or papers papers Doe #5 cites, among other things, some of the RIAA's submissions in UMG Recording v. Lindor, and SONY BMG Music Entertainment v. Tenenbaum.

John Doe #5's Amended Response to Plaintiffs' Objection
Exhibits

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I just discovered that it was easy to move the sidebar from left to right. If anyone has a preference, please let me know through the comments to this post.

Thanks.
Best regards
-Ray

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We have recently learned that in a Kansas City, Kansas, case, UMG v. Johnson, the defendant filed 5 counterclaims, including counterclaims for computer fraud and abuse, and for civil conspiracy including allegations of MediaSentry having engaged in the investigation business without a license.

The RIAA has moved to dismiss the counterclaims.

Amended Answer and Counterclaims
Plaintiffs' brief in support of motion to dismiss counterclaims
Defendant's brief in response to motion to dismiss counterclaims

Commentary & discussion:

p2pnet.net

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

In Arista v. Does 1-9, the Columbus, Ohio, case in which the Magistrate Judge had dismissed and severed as to John Does 2-9 due to their misjoinder, but granted the RIAA's motion for discovery, the District Judge sustained the rulings of the Magistrate, over objections from both sides, in a July 29, 2008, decision.

Now the RIAA has filed a Notice of Dismissal Without Prejudice.

July 29, 2008, Decision affirming Magistrate Judge's rulings
Notice of Dismissal Without Prejudice

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

A scheduling order has been entered in Capitol Records v. VideoEgg which calls for an October, 2009, trial.

September 11, 2008, Scheduling Order

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

In Warner Bros. Entertainment v. RDR Books, the judge has issued a 68-page decision, following a bench trial, in which he concluded that the "Harry Potter Lexicon" was not a "fair use" of J. K. Rowling's copyrighted material from the Harry Potter series.

The court concluded that the work was "transformative", but that portions which quoted the original language too heavily were less transformative; that the use was clearly commercial in nature; that the defendant had not been guilty of bad faith; that there was more "verbatim copying" than was "reasonably necessary"; work was clearly for financial gain; and that while the lexicon did not compete with the novels, it would compete with a planned "derivate work", Ms. Rowling's planned encyclopedia, would compete with 2 "companion books" Ms. Rowling had written, and -- although plaintiffs had offered no evidence of any intention to market poems and songs -- would compete with their marketing poems and songs were they inclined to enter into that market.

The judge awarded plaintiffs $6750 in statutory damages, and issued an injunction against the publication.

September 8, 2008, Decision

[Ed. note. There's excellent coverage, and even a text version of the decision, as well as the usual good discussion, on Groklaw. -R.B.]

[Ed. note. Sad. Very sad. And contrary to law as well. Unfortunately for the rest of us, the fact that the defendant got off so easily -- $6750 -- militates against his taking an appeal. -R.B.]

Commentary & discussion:

p2pnet.net
ZDNet
Groklaw
Slashdot

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

The University of Michigan "John Doe" student, known only as "Case # 162983070" to Michigan's Department of Labor and Economic Growth in Case Number 162983070 v. MediaSentry, has filed further papers, stating that MediaSentry has been violating the law for years in Michigan, and that its violations are felonies, and calling for a criminal prosecution.

September 5, 2008, Letter of "Case # 162983070", and exhibits

Commentary & discussion:

p2pnet.net
The Inquirer
ezee.se
Computer World
Online Media Daily
Slashdot

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

The fur continues to fly in Michigan, in a number of proceedings involving MediaSentry's unlicensed investigations.

In one of the three administrative proceedings before the Department of Labor and Economic Growth, Kruger v. MediaSentry, the complainant submitted a letter with exhibits to the Court.

And in the John Doe case involving Northern Michigan University, LaFace v. Does 1-5, the pro se defendant "John Doe #5 submitted additional documents to the Judge, and the RIAA responded.

July 12, 2008, letter in Kruger v. MediaSentry

August 12, 2008, letter of John Doe #5
August 26, 2008, RIAA response to letter of John Doe #5

Commentary & discussion:

p2pnet.net

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

If you can be at New York City's Public Theater on Monday, October 6th, you might want to sign up for what promises to be a very interesting all-day event, at a very modest $25 registration fee, sponsored by the Future of Music Coalition, entitled What's the Future for Musicians?".

Here's how the hosts introduce it:

Today's music landscape is filled with both excitement and foreboding. With so many new technologies and ways to promote and distribute music, how do performers, composers, songwriters and independent labels know how to participate, who to trust, and what is most effective?

FMC is working with The Public Theater and other musician organizations to program our sixth "What's the Future for Musicians?" educational event, this one in New York City on October 6, 2008.

This seminar will educate musicians and label owners from a range of genres – classical, jazz, rock, folk and hip-hop – about the critical issues at the intersection of music, law, technology and policy, with the goal of better preparing musicians to participate in the issues that affect their livelihood.

The speakers' list includes the following folks, and even more are being added:

Richard Bengloff President , American Association of Independent Music

Michael Bracy Policy Director, Future of Music Coalition

Brian Camelio CEO/Founder, ArtistShare

Ann Chaitovitz Executive Director, Future of Music Coalition

Jennifer Wright Cook Executive Director, The Field

Matthew Covey Executive Director, Tamizdat Inc.

Ken Freedman Station Manager, WFMU

Joel Hamilton Engineer, Producer, Jerk, Studio Owner, Studio G Brooklyn

Dick Huey CEO, Toolshed

Ariel Hyatt President , Ariel Publicity and Cyber PR

Zoe Knight Associate Director/Consultant, Artist Mangement & Publishing

Alex Maiolo Project Director, HINT

Charles McEnerney Host + Producer, Well-Rounded Radio

Marie Ortiz Program Director, Healthcare, Fractured Atlas

hal ponder director of government relations, american federation of musicians

hal ponder director of government relations, american federation of musicians

Jeff Price CEO/Founder, TuneCore

Molly Sheridan Managing Editor, NewMusicBox.org/Director, CounterstreamRadio.org, American Music Center

Marcy Rauer Wagman Associate Professor/CEO, MAD Dragon UNLTD, Drexel University/MAD Dragon UNLTD

Event website

Commentary & discussion:

Kaplaa

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

David Kravets of Wired.com, who provided in-person gavel-to-gavel coverage of the Capitol v. Thomas trial last year, takes stock of the RIAA's 5-year-old litigation campaign, concluding it is 'at a crossroads', and noting that 'billions of copies of copyrighted songs are now changing hands each year on file sharing services. All the while, some of the most fundamental legal questions surrounding the legality of file sharing have gone unanswered. Even the future of the RIAA's only jury trial victory -- against Minnesota mother Jammie Thomas -- is in doubt. Some are wondering if the campaign has shaped up as an utter failure.'

Commentary & discussion:

p2pnet.net

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

We have recently learned that computer forensics technicians are required to be licensed under Michigan law, that the Department of Labor and Economic Growth has always taken that position, and that several months after the DLEG's MediaSentry investigations began in Michigan, the State enacted a statute codifying the DLEG's position.

An avid reader of this blog, who has been independently studying the MediaSentry investigations in Michigan, had this to report recently. We thank him for the report.

Media Sentry’s days of unlicensed investigations of Michigan residents may soon be over.

On May 28, 2008, the Michigan governor signed into legislation an expanded revision of the state’s professional investigator licensing act. The new definitions make it absolutely clear that the activities of Media Sentry fall under the definition of a private investigator and that, as such, it needs to secure a license to investigate residents of Michigan.

Specifically, the act specifically covers any business that contracts to make an investigation for the purpose of obtaining computer forensics to be used as evidence before a court.

“Computer forensics” is defined by the new law as: “the collection, investigation, analysis, and scientific examination of data held on, or retrieved from, computers, computer networks, computer storage media, electronic devices, electronic storage media, or electronic networks, or any combination thereof.” Clearly this includes any and all of MediaSentry's activities in the RIAA cases.

A copy of the new statute, effective May 28, 2008, is attached.

This new statutory definition should not be anything new to Media Sentry since it appears to simply recognize a long-standing position of the regulating agency, the Michigan Department of Labor and Economic Growth (“DLEG”), that computer forensic activities are considered investigative activities under the old statute.

In 2006, Kessler International, a large international firm engaged in forensic accounting and computer forensics, conducted a national survey in which is wrote to the various state investigative licensing boards to determine, among other things, whether or not computer forensic technicians would be considered private investigators under the state’s licensing laws. The response that the Kessler company received from the DLEG was unequivocal in the agency’s position:
“Michigan does require that a “computer forensics technician” be licensed as a private detective”. (See May 22, 2006 letter from DLEG to Kessler International)
A copy of the 2006 DLEG letter is attached.

Practitioners involved in litigation involving Media Sentry should make a formal inquiry of their state licensing boards to determine whether or not those boards consider computer forensics to be an activity that triggers a requirement to be licensed as a private investigator. To the extent that their answer is affirmative, like Michigan’s, it may help with the argument that Media Sentry’s ongoing illegal investigations should not be accommodated or considered by the Courts.

I have included a web site to the results of the various state Private Investigative boards to Kessler International’s survey.
http://www.thekesslernotebook.com/

http://www.investigation.com/surveymap/surveymap.html

May 22, 2006, Letter of Michigan Department of Labor and Economic Growth

Michigan Statute effective May 22, 2008, codifying rule that investigator's license is required for “the collection, investigation, analysis, and scientific examination of data held on, or retrieved from, computers, computer networks, computer storage media, electronic devices, electronic storage media, or electronic networks"

Commentary & discussion:

p2pnet.net
Ars Technica

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

Thanks to reader "Joel" for bringing this to our attention.

We have learned that UMG v. Greubel, the case in Fort Worth, Texas, where the defense was being financed by Nettwerk Music, has been settled.

The settlement document contains no information on the terms of the settlement.

Stipulation of dismissal with prejudice

Commentary & discussion:

p2pnet.net

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

Thanks to a faithful reader "Scott" who brought this to our attention.

In an Arizona case, Atlantic v. Howell, the Court, after finding that defendant had "repeatedly" and "willfully" destroyed evidence necessary to a determination of the case on the merits, struck the defendant's answer and entered a default judgment in favor of the plaintiffs.

Fred Von Lohmann of the Electronic Frontier Foundation was quoted in Ars Technica as saying "He never had an adequate opportunity to explain what happened on his PC, while the RIAA had forensics experts and lawyers to tell the story.... I think if Howell had an expert and lawyer to speak for him, he would have told a different story."

August 29, 2008, Order striking defendant's answer and granting default judgment to plaintiffs

Found via Ars Technica.


Ed. note. 9/2/08
[I've uploaded exhibit A to the RIAA's 'spoliation' motion, the June 21, 2006, letter. Note that in the very same paragraph (last bullet paragraph on page 2) in which the RIAA lawyers requested Ms. Howell to "preserve evidence" and not to delete the peer-to-peer file sharing programs, it also instructed her to "stop them from operating". It is my understanding that many people are unable to "stop them from operating" without deleting them, and that the FastTrack programs such as Kazaa and iMesh were specifically designed to prevent users from 'stopping them from operating'. -R.B.]

Commentary & discussion:

Online Media Daily

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

Thanks to Living the Liminal for pointing out "35 Places To Download Free, Legal MP3s - Sorry, RIAA!" published by Download Squad.

We will be adding that to our own listing, Liberated Music.

Commentary & discussion:

p2pnet.net

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