Recording Industry vs The People

In a recent case in the Southern District of New York, Yurman Studio, Inc. v. Castaneda, 07 Civ. 1241 (SAS)(S.D.N.Y. November 19, 2008), District Judge Shira A. Scheindlin reminds us of the well settled principle that "At the end of the day, 'statutory damages should bear some relation to actual damages suffered' [citing RSO Records v. Peri, 596 F.Supp. 849,862 (SDNY 1984); New Line Cinema Corp. v. Russ Berrie & Co., 161 F.Supp.2d 293,303 (SDNY 2001); 4 Nimmer Sec. 14.04[E][1] at 14-90(2005)] and 'cannot be divorced entirely from economic reality'"

The damages disproportion and economic reality disconnect in RIAA cases were recognized in the September 24, 2008, dictum of District Judge Michael J. Davis, set forth at pages 40-43 of the Court's decision (pdf) in Capitol v. Thomas, where Judge Davis observed that the statutory damages awarded were "wholly disproportionate", and urged Congressional action to prevent a recurrence. While we agree that Congressional action would be nice, we think it is clear that copyright jurisprudence itself prevents the outlandish damage awards sought by the RIAA.

The lessons to be learned from Yurman, and the body of law upon which it rests, are:

(a) it is necessary to obtain pretrial discovery into the plaintiffs' actual damages,

(b) the RIAA's outlandish theories for recovery of from 2,600 to 450,000 times plaintiffs' actual damages are inconsistent with the main body of copyright law, and cannot be allowed;

(c) the RIAA's allegation of a single copyright violation -- i.e. the use an "online media distribution system" -- should be treated as a single act of copyright infringement, and the award should be limited to a maximum of $750 in statutory damages, total, or $200 if the infringement was innocent; and

(d) as an alternative to (c), the maximum award of statutory damages should be nine (9) times the actual damages proved by plaintiffs to have been sustained, which would limit recovery to a range of from zero to $3.15 per song file (typically, lost profits are approximately 35 cents per song file).

The Courts should recognize that any other interpretation of the Copyright Act would lead to an inescapable conclusion that the statute is unconstitutional.

We should also be mindful of the rule that no statutory damages at all are recoverable if the complaint alleges (as the RIAA complaints do allege) an ongoing course of copyright infringement, for any recordings whose effective date of copyright registration is later than the date the defendant's ongoing course of copyright infringement began. 17 U.S.C. Sec. 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). As to those song files, only the actual damages are recoverable. (Example: Plaintiffs' allegations are that defendant used an online media distribution system to download and/or distribute plaintiffs' songs without permission on a continuing basis. Plaintiffs' proof is to the effect that defendant began using Kazaa on November 1, 2006; defendant used it to download copyrighted song files A through F without permission, during the period January 1, 2007, to December 31, 2007; the copyright registration effective date for song file A is October 1, 2006; the copyright registration effective date for song file B is December 1, 2006; the copyright registration effective dates for song files C through F are in 2007. Plaintiffs can recover statutory damages for Song File A only, and are relegated to actual damages only for song files B through F.)

Yurman v. Castaneda, November 19, 2008, Decision

Commentary & discussion:

TechDirt






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 Cleveland, Ohio, case targeting students at Case Western Reserve University, Arista Records v. Does 1-11, the District Court has granted the defendant John Doe #9's motion for severance, and severed as to Doe #9 and all other defendants except John Doe #1.

District Judge Kathleen O'Malley rejected the RIAA's argument that severance was premature, agreed with the authorities that had granted severance, and dismissed the authorities cited by the RIAA as providing insufficient analysis, explanation, or rationale.

November 3, 2008, Decision



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 Fonovisa, Inc. v. Does 1-9, a Pittsburgh, Pennsylvania, case targeting Carnegie Mellon students, in which a student -- appearing pro se -- succeeded in challenging the misjoinder of John Does, but failed to get dismissal of the complaint or quashing of the subpoena, the Magistrate Judge's ruling has now been affirmed by the District Court Judge.

The appeal has been pending for approximately one year.

November 28, 2008, Order Affirming Rulings 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

In Atlantic Recording v. Raleigh, a case pending in St. Louis, Missouri, the RIAA has made a motion to compel discovery.

Plaintiffs' motion to compel discovery

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

Thanks to Jon Newton at p2pnet.net for pointing out, and commenting on, this article by Prof. Nesson on SONY BMG Music v. Tenenbaum which appeared in the Journal of New England Technology:

"The RIAA’s prosecution of copyright law is unconstitutional"

For Jon's article go here.


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 Arista Records v. Does 1-16, the case targeting students at SUNY Albany, defendant's lawyer advised the Court of the recent ruling in a Boston University case, London-Sire Records v. Does 1-4. In the Albany case, defendants' motion to quash the subpoena is pending.

Supplemental Declaration of Richard A. Altman

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

Warner Bros. Records v. Cassin, the Westchester case challenging the "making available" theory, has been settled. A notice of dismissal without prejudice of the 2nd phase of that case, the case against the "John Does", was filed today.

Notice of dismissal without prejudice

Commentary & discussion:

p2pnet.net





Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

As you know, on November 24th, in one of the "John Doe" cases targeting Boston University, consolidated under the heading London-Sire Records v. Does 1-4, after the university advised the Court that it could not identify John Does #8, 9, and 14 to a reasonable degree of technical certainty, Judge Nancy Gertner deemed the letter a motion to quash, and granted it, quashing the subpoena as to those defendants:

The Court treats Boston University's 9/23/08 Letter as a Motion to Quash and GRANTS the motion with respect to Doe Defendants # 8, 9, and 14. The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty. As a result, the Court finds that compliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery. Accordingly, under the test laid out in its 3/31/08 Order, the Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14.

(emphasis supplied) We have been saying this for years. It is refreshing to see it finally recognized in a decision. Interestingly, it occurred in an undefended case, where no "John Doe" appeared. The Court, however, deemed the University's letter explaining the identification problem a motion to quash, and granted it.

The reason we believe this little, 4-sentence, decision is so important is that if the principle it enunciates is followed consistently by Judge Gertner and by other judges, very few, if any, RIAA subpoenas will withstand a motion to quash going forward. E.g., if this principle had been followed in Arista Records v. Does 1-17 targeting University of Oregon students, or in LaFace Records v. Does 1-14 targeting University of Arizona students, in both of which the university's plea fell on deaf ears, the respective subpoenas would have been quashed as to all, or at least most, of the students.

Accordingly, I urge every practitioner who is consulted by a John Doe defendant, and is contemplating a motion to vacate the ex parte discovery order and quash the subpoena issued under it -- whether through a college or university or through a commercial internet service provider -- to give careful consideration to the November 24, 2008, decision in London-Sire Records v. Does 1-4.

And I urge every college and university counsel, and internet service providers' counsel, to consult with your technical staff and recognize that Judge Gertner's decision implies a responsibility on your part, on behalf of your students and subscribers, to advise the respective courts from which the subpoenas have been issued, before making disclosure to the RIAA, as to which, if any, "alleged infringers" can be identified "with a reasonable degree of technical certainty", as Boston University did, so that the Court can pass upon the question .

Order (a) treating University's letter as motion to quash, and (b) quashing subpoena as to John Does #8, 9, and 14

Commentary & discussion:

Online Media Daily






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 Capitol Records v. Thomas, the RIAA has filed a reply memorandum in further support of its motion for permission to appeal from the Court's September 24, 2008 decision.

Plaintiffs' Reply Memorandum

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 one of the "John Doe" cases targeting Boston University, consolidated under the heading London-Sire Records v. Does 1-4, after the university advised the Court that it could not identify John Does #8, 9, and 14 to a reasonable degree of technical certainty, Judge Nancy Gertner deemed the letter a motion to quash, and granted it, quashing the subpoena as to those defendants:

The Court treats Boston University's 9/23/08 Letter as a Motion to Quash and GRANTS the motion with respect to Doe Defendants # 8, 9, and 14. The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty. As a result, the Court finds that compliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery. Accordingly, under the test laid out in its 3/31/08 Order, the Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14.

Order (a) treating University's letter as motion to quash, and (b) quashing subpoena as to John Does #8, 9, and 14

Commentary & discussion:

p2pnet.net
Slyck
Slashdot
BuzzFlash
Digg
Ars Technica
Chronicle of Higher Education
Frequently Asked Q
Ars Technica
eZee.se
Jolt Digest
Online Media Daily
TechDirt

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

Two Brooklyn cases against residents of Queens, Elektra Entertainment Group v. Torres and Maverick Recording v. Chowdhury, have been settled.

Elektra v. Torres Stipulation of Dismissal With Prejudice
Maverick v. Chowdhury, Minute Entry noting settlement in court record

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

Just thought some of you might like seeing email strings between Prof. Nesson and Timothy Reynolds in SONY BMG Music v. Tenenbaum... so here's one.

I guess you'll be able to find more, and other interesting tidbits about the Tenenbaum case, by following Prof. Nesson's blog, "eon".

Commentary & discussion:

p2pnet.net




Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

District Judge Herman J. Weber has granted the defendant's request for oral argument of the pending motions in Elektra Entertainment Group v. Licata, a Cincinnati "throwing in the towel" case.

This is the case in which (a) the defendant moved to dismiss the complaint for failure to state a claim and for attorneys fees, (b) the RIAA moved to dismiss its own complaint "without prejudice", and (c) the Magistrate Judge denied defendant's motions, and granted the RIAA's motion.

Defendant has filed papers objecting to the Magistrate Judge's recommendations, and the matter is now before Judge Weber.

The argument is open to the public, and will be held at:

Tuesday, December 9th
10:00 AM
Room 801
Potter Stewart US Court House
100 East Fifth St.
Cincinnati, Ohio 45202




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

The RIAA's request for extension of time in which to serve its (a) reply papers in support of its motion for "discovery sanctions" and dismissal without prejudice, and (b) papers in opposition to defendant's Rule 11 motion in UMG Recordings v. Lindor has been granted.

They now have until December 4th to serve both sets of papers.

November 21, 2008, Order of Magistrate Judge Hon. Robert M. Levy Granting Plaintiffs' Request for Extension of Time

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 Atlantic Recording v. Raleigh, a St. Louis, Missouri, case in which the Court dismissed defendant's counterclaims in August, new, more detailed, amended class action counterclaims have been filed, alleging claims for:

-RICO
-Fraud
-Conspiracy
-Trespass
-Prima Facie Tort
-violation of the Computer Fraud & Abuse Act.

The amended counterclaims specifically reference Capitol Records v. Foster and several other cases.

The predicate acts for the RICO count were extortion, mail fraud, and wire fraud.

The class on behalf of whom the claims are asserted is all persons residing in the United States who:

a. were falsely accused by Counterclaim Defendants and RIAA of downloading copyrighted sound recordings owned by the ounterclaim Defendants and making them available for distribution or mass distribution over a P2P network and who incurred costs and damages including legal fees in defense of such false claims; and/or

b. whose computers used in interstate commerce and/or communication were accessed by Counterclaim Defendants without permission or authority through conduct involving interstate communication and from which information was obtained in violation of such person’s rights within two years prior to the date of the filing of this amended counterclaim.

Amended Answer and Counterclaims

Commentary & discussion:

p2pnet.net
Slashdot
TechDirt
Sir Arthur's Den
Effect Measure
webbits
Scholars & Rogues
BuzzFlash

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

We have learned that the Australian counterpart of the MPAA has filed a lawsuit against a small Australian ISP, perhaps as a warm-up for a war -- by Big Music and Big Film -- against ISP's in general.

The larger Australian film studios have ganged up against iinet, an Australian ISP which holds 5% of the market.

The action was filed jointly by a group of supposed 'competitors' -- Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network (free to air tv channel).

http://www.afact.org.au/pressreleases/AFACT_Media_Release_201108_iiNet.pdf

It is rumored that they went after a small ISP and would not dare to take on the might of Telstra, Australia's largest ISP, www.bigpond.com, which would be better equipped for litigation, having a large litigation team.

The court documents are available here

iinet had this (pdf) to say about it, and has a forum in which to discuss the suit.

Commentary & discussion:

p2pnet.net





Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

We were thrilled to see Pizza Hut teaming up eMusic, the great indie music source.

We learned through one of the ads placed by Google AdSense that people who order online from Pizza Hut can join eMusic and get 75 free MP3's!

[Ed. note. Hmmmm. I guess Pizza Hut has some forward-looking folks in management, who realize that the future is with independent music, not with the four big -- but rapidly shrinking -- dinosaurs who can't think of anything better to do with the internet than use it as a means of bringing automated lawsuits, manned by an army of unemployable clones, against (a) their best customers or (b) innocent people. I.e Pizza Hut is teaming up with the people who are really about music, not about corporate monopoly. -R.B.]



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 SONY BMG Music v. Tenenbaum, the defendant's witness includes, among others:

-John Perry Barlow (former songwriter for The Grateful Dead)

-Prof. Johan Pouwelse (technical and scientific director of European research project P2P-Next)

-Prof. Lawrence Lessig

-Matthew Oppenheim

-Prof. Terry Fisher

-Prof. Wendy Seltzer

-Prof. John Palfrey

-Prof. Jonathan Zittrain

-Andrew Grant (former antipiracy specialist at Macrovision)

Defendant's PreTrial Memorandum

Commentary & discussion:

p2pnet.net
ZDNet
Slashdot
Slyck
TechDirt
The Inquisitr

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 SONY BMG Music v. Tenenbaum, the trial -- scheduled for December 1st -- has been rescheduled for March 30, 2009.


The docket entry is as follows:

Electronic Clerk's Notes for proceedings held before Judge Nancy Gertner: 11/18/09 Status Conference/Hearing held on scheduling matters re: Defendant JOEL TENEBAUM. Counsel shall submit a Joint Discovery schedule by 11/24/08; if counsel are unable to agree to a discovery schedule, plf shall file a response by 12/3/08. Hearing on pending mtns set for 1/22/09 at 2:30-5:00. Jury Trial RESET TO 3/30/2009 09:00AM; Pretrial Conference RESET TO 3/24/2009 02:30 PM in Courtroom 2 before Judge Nancy Gertner. (Court Reporter: O"Hara.)(Attorneys present: Atty Nesson, Cloherty, Reynolds, Oppenheim)

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 UMG Recordings v. Lindor, the RIAA has asked for more time to file its reply papers, in support of its motion for "discovery sanctions" and voluntary dismissal "without prejudice", to respond to Ms. Lindor's opposition papers, and for more time to file its opposition to Ms. Lindor's Rule 11 motion.

Defendant did not consent.

November 18, 2008, letter of Eve G. Burton to Hon. Robert M. Levy
November 18, 2008, letter of Ray Beckerman to Hon. Robert M. Levy

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

Defendant has served and filed his Notice of Constitutional Question in SONY BMG Music v. Tenenbaum

Notice of Constitutional Question

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

The RIAA's motion to adjourn the December 1st jury trial scheduled in SONY BMG Music v. Tenenbaum was granted yesterday.

We do not yet know the new trial date that has been set.

A status conference was scheduled for today at 2:30 P.M.



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 settling cases, the RIAA has an unusual practice of sometimes asking the defendant to agree to an immediate judgment for twice the actual settlement amount.

This practice was rejected on November 18th, in Boston, by Judge Gertner, in a case in which a defendant who was not represented by counsel signed such a settlement:

Judge Nancy Gertner: ELECTRONIC ORDER entered re Stipulation To Judgment and Permanent Injunction filed by All Plaintiffs as to defendant LaShaana Straw. "The parties' Stipulation to Judgment is DENIED. Plaintiffs request that the Court approve a Stipulation requiring the Defendant to pay $10,700, yet state in their Response that they have agreed to accept half that amount, $5,350, in full satisfaction of the monetary portion of the proposed judgment. The Plaintiffs do not provide any reason for this highly unusual arrangement, and the Court will not approve a stipulation which fails reflect the actual terms of the agreement. The Plaintiffs must present to the Court a proposed judgment which accurately states the amount the Defendant will be required to pay to settle the claims."

Commentary & discussion:

TechDirt
Consumed by Music and Media




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

According to an interesting report in p2pnet.net, the State of Tennessee will be forking over $9.5 million of taxpayer money, and an additional $1.5 million a year, to help the RIAA.



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

For those among you looking for tea leaves to read about whether the Obama administration will look kindly on technology and the internet, some mighty interesting tea leaves have been sprinkled, and they look very positive to me. Susan Crawford, the founder of One Web Day, has just been named as co-leader of the FCC transition team. In my estimation, this augurs well for the United States of America continuing to be active in a robust, worldwide internet.

(Thanks to Jon Newton of p2pnet.net for bringing this splendid news to my attention. -R.B.)

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

According to a report in p2pnet.net, Duke University has told the RIAA that it will no longer forward the RIAA's 'early settlement' letters to its students unless the RIAA submits 'evidence that someone actually downloaded from that student', and said that 'if the RIAA can’t prove that actual illegal behavior occurred, then we’re not going to comply':

Duke University to RIAA: put up or shut up

p2pnet news view | RIAA News:- Duke University has joined the growing list of schools balking at following Vivendi Universal, EMI, Warner Music and Sony BMG’s RIAA sue ‘em all instructions.

Put up or shut up, Duke University for VP for student affairs Larry Moneta ... has told Vivendi Universal, EMI, Warner Music and Sony BMG’s RIAA, in effect.

And the same goes for Hollywood’s MPAA.

Duke will now require agencies like the aforementioned entertainment cartel enforcement organisations, “to provide evidence of copyright infringement before forwarding pre-litigation notices to students,” says the school’s Duke Chronicle.

Complete article.

[Ed. note. While it is good news that a university is requiring the RIAA to put up or shut up, the forwarding -- or not forwarding -- of letters is pretty insignificant. What I want to know is this: 'When the RIAA comes knocking with its Star Chamber, ex parte, 'John Doe' litigation to get the students' identities, is the University going to go to bat for the students and fight the litigation on the ground that it's based on zero evidence, and on the ground that the students weren't given prior notice and an opportunity to be heard?'. -R.B.]

Commentary & discussion:

Slashdot
Slyck
Duke Chronicle (11/20/08 Followup)





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 SONY BMG Music v. Tenenbaum, the case where Mr. Tenenbaum is represented by Prof. Charles Nesson and his CyberLaw class at Harvard Law School, the RIAA has asked the judge to postpone the trial.

Motion to Adjourn PreTrial Conference

Commentary & discussion:

p2pnet.net



Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

In Capitol Records v. MP3 Tunes, the defendant has filed an amended answer and counterclaims, which accuses EMI and its affiliates of deception under the Digital Millenium Copyright Act, deceptive business practices, and unfair competition.

Amended answer and counterclaims

Commentary & discussion:

p2pnet.net




Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

In UMG Recordings v. Lindor, Ms. Lindor has filed a motion for sanctions under Rule 11 against the RIAA's lawyers, based upon their motion for "discovery sanctions" and voluntary dismissal.

Her papers incorporate by reference the papers she had served in opposition to the RIAA's motion.

The Rule 11 motion was served on October 22, 2008, and filed today.

Notice of motion and declaration
Supplemental declaration

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

"Copyright and Fair Use" at Stanford Law School reports that the defendant publisher, RDR Books, has filed an appeal from the Judge's decision in Warner Bros. Pictures v. RDR Books, the case involving the Harry Potter Lexicon.

The Judge, after a bench trial, issued an injunction and statutory damages of $6750 holding that the Lexicon was not protected by fair use due to (a) sloppiness in attribution in sections, (b) the length of some of the quotes, and (c) imitation of J.K. Rowling's writing style in portions.

I recently wrote an article criticizing the opinion, but doubting that an appeal would be taken in view of the small damages award.

I guess I underestimated the resolve of the defendants and defendants' lawyers -- who include the Stanford Law School Center for Internet and Society.

Commentary & discussion:

Slashdot
p2pnet.net
Sound & Fury. Signifying Nothing.
Leaky Lounge
Info/Law
The Illuminated Dungeon
Ars Technica





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 Capitol Records v. Thomas, defendant Jammie Thomas has filed papers opposing the RIAA's motion for permission to file an immediate appeal from the Court's September 24, 2008, decision.

Defendant's memorandum of law in opposition

Commentary & discussion:

Afterdawn
DRBIG
Wired.com



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

If you feel that the work we do at "Recording Industry vs. The People" is important, there is a very easy and painless way, which doesn't cost you a dime, of helping to support us financially. And that is -- when you're going to buy something or sign up for something -- try to do it through one of the links of one of our "affiliate advertisers" in the Ad Links section.

These advertisers pay a commission to "Recording Industry vs. The People" for any goods or services which you buy or sign up for after you click on their link.

For example, if you were to go to the independent music section and sign up for eMusic or OurStage, we would get a commission on that. And if you were to browse through Amazon's independent music MP3's and make some purchases at Amazon, I would get a commission on those, even if what you ultimately bought had nothing whatsoever to do with the link you'd clicked on to get to the Amazon site. (E.g., let's say you were a Pete Seeger fan like myself and clicked on the mp3 download of "Seeger at 89", decided to get the cd version rather than the mp3 version and bought that instead, and then also picked up a pocket edition of Black's Law Dictionary and a flash drive while you were there, we would get a commission on all three purchases.)

I'm in the process now of setting up a directory of affiliate advertisers, which I'm tentatively calling Ad Links. My plan is to publish it at the bottom of the sidebar, after the feeds from some of our favorite commentators.

If there are categories of goods or services, or specific advertisers or products, which you don't see in the directory, from whom you are interested in buying something, please let me know by email or by posting a comment to this post here or any other post, and I'll try to add it to the directory; you would be doing me a big favor by doing that.

Thanks! And please try to keep an eye on the Ad Links.

Best regards.

R.B.



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

Just read this really nice article on "Bottree: Internet Marketing Commentary". Thank you, "Bottree". -R.B.

RIAA Underestimates Influence of 2.0 World

The RIAA has fought a number of lawsuits against pre-teens and grandmothers, and Ray Beckerman’s “Recording Industry vs The People" site has been keeping track of all of them. Any time another person is hauled to court, Ray carries as much detail as he can scrape up, mainly in an effort to catalogue legal arguments, definitions and provide other materials and resources for defending lawyers.

It has proven to be of fantastic value to anyone who has found themselves in the bullseye of the RIAA and will most likely be the ‘thin edge of the wedge’ that ultimately forces the RIAA to find a different approach to its business.

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

Jon Newton of p2pnet.net reports some students at University of Wisconsin have had to drop out school to pay the RIAA:

RIAA, MPAA, BSA: Evil is as Evil does

p2pnet news view | RIAA News:- “It’s been really hard to have to be the one to tell them they are facing this lawsuit,” University of Wisconsin - Eau Claire associate dean of student development Jodi Thesing-Ritter said recently.

“Some students have had to drop out of school in order to pay for their legal fees.”

Vivendi Universal, EMI, Warner Music and Sony BMG, “hate anything which even looks remotely like competition,” p2pnet posted recently.

“They hate independents and independence.

“They hate anything which interferes with what they see as their God-given right to control how, and by whom, music is distributed online.

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 case you're interested in reading my recent article on the "Harry Potter Lexicon" case and the "fair use" defense, which appeared in the excellent e-commerce law publication, e-commerce law reports, it's online here (Copyright by e-commerce law reports, reprinted by permission)



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 UMG Recordings v. Lindor, where the RIAA made a motion for voluntary dismissal without prejudice and for "discovery sanctions" against Ms. Lindor and her attorney, Ms. Lindor has served her responsive papers.

Her papers accuse the RIAA of persistent misrepresentations of fact throughout its papers, of violating the rules, and of misstating the law.

She argued that the only reason the RIAA is seeking a "without prejudice" designation is to help give it a basis for arguing against its being assessed with attorneys fees.

Declaration of Ray Beckerman in opposition
Memorandum of law in opposition
Exhibit A-Jacobson testimony
Exhibit B-Marie Lindor testimony pp 30-36
Exhibit C-Marie Lindor testimony p 24
Exhibit D-Marie Lindor testimony p 27
Exhibit E-June 20, 2006 Email Ray Beckerman to Richard L. Gabriel (Hard Drive)
Exhibit F-Draft stipulation (Hard Drive)
Exhibit G-Defendant's application to Magistrate Judge Levy for Discovery Rulings(Hard Drive)(Plaintiffs' Defaults)
Exhibit H-August 3, 2006, reflecting July 25, 2006, discovery rulings
Exhibit I-Timothy M. Reynolds email refusing to provide copy of transcript
Exhibit J-Letter in which Richard L. Gabriel admits that he called Mr. Raymond's employers
Exhibit K-Defendant's objection to Gustave Lindor motion as "fishing expedition"
Exhibit L-Ray Beckerman to Hon. Robert M. Levy responding to RIAA cross-motion
Exhibit M-May 9, 2006, RIAA Email transmitting first draft of Hard Drive stipulation
Exhibit N-April 7, 2006, RIAA Email apologizing for delay in responding re Hard Drive inspection
Exhibit 0-December 20, 2007, objection by defendant to RIAA expert submitting 5th version of report containing new matter
Exhibit P-Errata Sheet accompanying deposition transcript of Yannick Raymond-Wright
Exhibit Q-Ars Technica eye witness report of RIAA lawyers consulting "Recording Industry vs. The People during Capitol Records v. Thomas trial
Exhibit R-Kent State University Student Legal Services Office site
Exhibit S-Digital Music Law Class at University of Ottawa School of Law, Professor DeBeer lesson plan
Exhibit T-Beckerman, Ray, "Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations", The Judges' Journal, Summer 2008 (American Bar Association--Judicial Section)
Exhibit U-Reynolds, Daniel, Note, "The RIAA Litigation War on File Sharing and Alternatives More Compatible with Public Morality", 9. Minn. J. L. Sci. Tech 977 (2008)
Exhibit V-MediaSentry inconsistent statements
Exhibit W-December 12, 2006, decision of Hon. Robert M. Levy, granting preclusion as to song files not produced in discovery, denying preclusion of proof by alternative means

Commentary & discussion:

p2pnet.net
Daily Online Examiner
Wired.com
Bottree: Internet Marketing Commentary
Slashdot

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 playerTo 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.

There are early indications that the gaming industry is now going the way of the RIAA -- suing innocent people, using spurious identifications based on random IP addresses. Perhaps before they go down that path they ought to investigate how much good it has done the "Big 4" record companies, who are a lot less "big" than they were when they started it. -R.B.

Games firms 'catching' non-gamers
Games firms are accusing innocent people of file-sharing as they crack down on pirates, a Which? Computing investigation has claimed.

The magazine was contacted by Gill and Ken Murdoch, from Scotland, who had been accused of sharing the game Race07 by makers Atari.

The couple told Which they had never played a computer game in their lives.

The case was dropped, but Which estimates that hundreds of others are in a similar situation.

Complete article

[Ed. note. Wasn't this inevitable when Kenneth Doroshow went from the RIAA to the ESA? -R.B.]



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