MP3Tunes accuses EMI and its affiliates of engaging in massive free distribution of song files over internet in Capitol Records v. MP3Tunes

In Capitol Records v. MP3Tunes, in opposition to EMI's motion to dismiss counterclaims, MP3Tunes has made detailed factual allegations that EMI and its affiliates have been engaging in massive free distribution, over the internet, using its own websites, using music blogs and other third party sites, and employing paid content delivery networks, of its song files, including the song files which it alleges MP3 is infringing.

The opposition papers list a number of sites on the internet where EMI has made its song files available for free download, "free to everyone (except, apparently, MP3tunes)". (Declaration of Michael Robertson, page 5, paragraph 11.

As an illustration, MP3 Tunes alleged:

One prominent example is the song “U R So Gay” from the aforementioned Katy Perry, who is signed to Capitol Records, which in turn is owned by EMI. While this is one of the thousands of songs EMI is suing MP3tunes for linking to on its Sideload.com web site, everyone else in the world is free to listen to and download the song from the following URL: http://capi001.edgeboss.net/download/capi001/katyperry/audio/katyperry_usogay.mp3

In the above-referenced URL, “edgeboss.net” is the domain name. As explained above, it is the brand name for Akamai, the CDN that EMI pays to distribute its music, for free, over the Internet. Just before that, “capi001” reflects that EMI’s Capital Records has an account with Akamai for music distribution.

(Declaration of Michael Robertson, pages 4-5, paragraphs 10-11). The opposition papers continue:

Here are some other examples of EMI songs which Akamai currently distributes over the Internet, free to everyone (except, apparently, MP3tunes):

· Lil’ Ru, “Don’t I Look Good” (EMI’s Capitol Records)
http://capi001.edgeboss.net/download/capi001/lilru/dontilookgood/lil_ru_dont_i_l
ook_good_cl.mp3

· Beastie Boys, “Car Thief A Capella” (EMI’s Capitol Records)
http://capi001.edgeboss.net/download/capi001/beastieboys/misc/acapella/Car_Thi
ef_A_Cappella.mp3?ewk13=1

· Doves, “Sky Starts Falling” (EMI’s Capitol Records)
http://capi001.edgeboss.net/download/capi001/doves/skystartsfalling/audio/skysta
rtsfalling.mp3

· Seth Lakeman, “King and Country” (EMI’s Relentless Records)
http://angel.edgeboss.net/download/angel/seth_lakeman_audio/digitalep/king_and
_country_128k.mp3

· XX Teens, “Darlin Original” (EMI’s Mute Records)
http://mute.edgeboss.net/download/mute/xx_teens/darlin_original.mp3

· Moby, “Moby Last Night” (EMI’s Mute Records)
http://mute.edgeboss.net/download/mute/moby/mobylastnight_sampler.mp3

MP3tunes also has several examples of music that EMI has distributed for free over the Internet in the past, but has removed from the Internet since the start of this litigation.

12. In addition, MP3tunes has since found EMI-copyrighted songs on the Internet
with URLs indicating that they were distributed by CoralCDN and Nine Systems, two other paid services which, like Akamai, distribute free MP3s for download over the Internet.

(Robertson Declaration, pages 5-6, paragraphs 11-12). MP3Tunes went on to document that EMI itself distributes the song files for free from its own web sites, directly:

among the record label sites owned by EMI which distribute free MP3 files are EMI Chrysalis, Definitive Jux Records, Siren Records, Parlophone, Bec Recordings, and Mute Record. Here are examples of actual EMI-copyrighted songs currently available for free download to everyone (except, apparently, MP3tunes):

· Vincent Vincent and the Villains, “I’m Alive ” (EMI Chrysalis)
http://www.emichrysalis.co.uk/vincentvincentandthevillains/music/track0.mp3

· Hercules and Love Affair, “Hercules Theme” (EMI Chrysalis)
http://emichrysalis.co.uk/herculesandloveaffair/downloads/16_11_07/Hercules_Theme.mp3

· Aesop Rock “Ghosts of The Barbary Coast” (EMI’s Definitive Jux Records)
http://www.definitivejux.net/store/catalog-product/US-A4T-04-173-00.html

· Goldenhorse, “Don’t Wake Me Up” (EMI’s Siren Records)
http://goldenhorse.co.nz/mp3s/Dont%20Wake%20Me%20Up.mp3

· Goldenhorse, “Fish” (EMI’s Siren Records)
http://goldenhorse.co.nz/mp3s/Fish.mp3

· Sparklehorse, “Shade and Honey” (EMI’s Parlophone Records)
http://www.parlophone.co.uk/sparklehorse/download.php?FILENAME=shadeand
honey.mp3&DOWNLOAD=1

· Mailers, “Morning Runner” (EMI’s Parlophone Records)
http://www.parlophone.co.uk/mailers/morningrunner/Cant_Get_It_Right.mp3

· Baby Shambles, “Lost Art of Murder” (EMI’s Parlophone Records)
http://www.parlophone.co.uk/babyshambles/timesdownload/download.php?DOW
NLOAD=1&FILENAME=babyshambles-lost_art_of_murder.mp3

· Chris Taylor, “Take Me Anywhere” (EMI’s Bec Recordings)
http://www.becrecordings.com/christaylor/1.mp3

· Chris Taylor, “That’s How It Goes” (EMI’s Bec Recordings)
http://www.becrecordings.com/christaylor/2.mp3

· Michael Andrews and Gary Jules, “Mad World” (EMI’s Mute Records)
http://www.radiomute.com/rmmusic/fieldrecordings-mad%20world.mp3

Please note that these too are just examples. There are hundreds, if not thousands, of other EMI copyrighted songs on such sites which fit this category.

(Robertson declaration, pages 6-7, paragraph 13). The papers also alleged that many of the links which form part of EMI's infringement claim are links to music blogs and other sites which offer free downloads of EMI material with EMI's authorization or implied consent.

Declaration of Michael Robertson
Defendant's Memorandum of Law

Commentary & discussion:

Slashdot
TechDirt
p2pnet.net
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

Good story in Wall Street Journal about independent artists achieving success through the internet

Here's a good article which ran in the Wall Street Journal about independent musical artists finding an audience for their music through the internet, and then signing with indie labels. Much thanks to reader Andres Rosado for bringing it to my attention.

Musician Finds a Following Online
Word-of-Mouth on Blogs and Other Sites Attracts Fans -- and a Record Deal

By SHELLY BANJO and KELLY K. SPORS

In late 2006, Justin Vernon, a musician in Eau Claire, Wis., recorded nine songs while staying at his parents' hunting cabin in northern Wisconsin after a breakup with a girlfriend and his long-time band. He used just a desktop computer with recording software, a three-piece drum set and a guitar.

A few months later, Mr. Vernon posted the songs on his MySpace page, hoping to get some listeners and feedback. He also printed 500 copies of a CD with those songs to sell to friends and fans and send to music bloggers for review.

He got that and much more.

Thanks to the buzz his online tracks generated on music blogs and social-networking sites, Mr. Vernon has played at numerous venues and appeared on the "Late Show With David Letterman." He signed a record deal in October 2007, and his first album, "For Emma, Forever Ago," sold about 87,000 copies through mid-December, with about half of those downloaded online. With a band he formed early this year, called Bon Iver, Mr. Vernon is now playing sold-out concerts across the U.S. and abroad.

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

Digital Music News Tries Unsuccessfully to get confirmation of RIAA "agreements" with ISP's; Verizon denies it outright

As journalists try to get confirmation of the Wall Street Journal's announcement that (a) the record companies have stopped filing mass lawsuits, and (b) the reason they did so is that the record companies have, under the auspices of the New York State Attorney General's Office, entered into "agreements" with the ISP's, the press is having trouble getting confirmation of the "facts".

Most recently, Digital Music News was the one asking tough questions and getting either no answers, or -- in the case of Verizon -- an outright denial of the RIAA's claims:

Any There There? RIAA Agreements Still Flimsy, Still Unconfirmed...

The following is a developing story, and information is being updated as it comes in. Please stay tuned as more information becomes available. Last updated: December 30th to include responses from United Online, Qwest, and comments from Verizon.

The RIAA is abandoning its strategy of suing individual file-swappers, and shifting towards ISP-level enforcement against infringers. That was trumpeted by major labels over the pre-Christmas weekend, but a closer look reveals rather flimsy deals with ISPs, at least for now. "We have agreements with some leading ISPs," RIAA executive Jonathan Lamy vaguely told Digital Music News on Monday, December 22nd, without naming names. "But not all. And the agreements are on principle."

That sounds rather unconvincing, and ISPs have traditionally resisted entertainment industry moves for greater subscriber enforcement. Over the past few years, the RIAA has frequently found itself battling access providers, especially over issues related to subscriber privacy and due process.

In that climate, will ISPs suddenly start removing accounts and issuing threatening letters? The answer depends on the specific ISP involved, according to a preliminary canvass conducted by Digital Music News. Ahead of the Christmas holiday, a number of US-based access providers were contacted, both through customer service and executive channels, specifically on the issue of warning letters and account terminations.

The results are still coming in, and many executives have been on a holiday hiatus. But service representatives at AT&T, Road Runner (Time Warner), United Online, Verizon, and Earthlink indicated that users account will not be terminated.

Complete article (expanding story)

A few days ago it was IP Watch which was unable to get confirmation.

And we were able to ascertain, through PACER and with a little help from our friends, that in fact the RIAA has recently brought hundreds of new cases. Additionally the announcement itself indicated that the RIAA still intended to initiate cases against large uploaders, which is not a very meaningful limitation since the RIAA has always claimed that all of its cases were only against people thought to be large uploaders.

In addition to learning that (a) the lawsuit campaign is far from over, (b) the "new agreements" with ISP's aren't "new" and aren't "agrements", and (c) the "new agreements" are NOT the reason the RIAA made the announcement but are merely a cover, I am also waiting to see what confirmation journalists will be able to obtain regarding

(1) the alleged involvement of the New York State Attorney General in brokering the phantom agreements,
(2) what New York law(s) the AG was enforcing,
(3) what violation(s) of New York law the AG was investigating, and
(4) what kind of agreement the AG made with the record companies.

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

Motions in UMG Recordings v. Lindor referred to Magistrate Judge Robert M. Levy

In UMG Recordings v. Lindor, the plaintiffs' motion for dismissal without prejudice and for discovery sanctions, and the defendant's motion for Rule 11 sanctions against plaintiffs' counsel, have been referred to Magistrate Judge Robert M. Levy for a report and recommendation.

December 24, 2008, Order Referring Motions to Magistrate Judge 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

Georgetown University Free Culture Chapter Asks All to Join in Plea to President Elect Obama to Make Fair and Balanced Selection for "Copyright Czar"

Received this important notice from Georgetown University's Free Culture Chapter. It is very important unless you want one of these record industry lobbyists to be our "copyright czar":

Join Georgetown Free Culture in Encouraging President-Elect Obama to Formulate a Comprehensive, Balanced Intellectual Property Policy

During the 2008 Presidential campaign, Barack Obama's technology policy white paper stated that "Intellectual property is to the digital age what physical goods were to the industrial age. Barack Obama believes we need to update and reform our copyright and patent systems to promote civic discourse, innovation and investment while ensuring that intellectual property owners are fairly treated."

Now, as President-Elect, Barack Obama can make concrete decisions to ensure American intellectual property policy encourages innovation. The first major decision that the Obama team will make in the area of patent and copyright policy will be the selection of the "Intellectual Property Enforcement Coordinator," popularly known as IP Czar. This position could be used to fight piracy and apply outdated copyright rules to the digital economy. Or, this position has the potential to update American IP policy and spur innovation, expand consumer choice and lead to the development of new services and jobs.

Georgetown University Students for Free Culture is encouraging President-Elect Obama to pursue the latter policy. You can join this effort by joining the Facebook Cause here to let the Obama team know that the public wants an IP czar who will support innovation and consumer choice."

Join here: http://tinyurl.com/9ujgqs

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

Trial transcript of Capitol Records v. Jammie Thomas now available online

We are pleased to announce that the complete transcript of the Duluth, Minnesota, jury trial, which took place October 2, 2007, to October 4, 2007, in Capitol Records v. Thomas, is now available online:

Transcript, October 2, 2007, pp. 1-278
Transcript, October 3, 2007, pp. 280-543
Transcript, October 4, 2007, pp. 544-643

[Ed. note. Many, many, many thanks to the "Joel Fights Back" team, who obtained this transcript and furnished it to "Recording Industry vs. The People". This transcript will be an invaluable aid to those of us representing defendants in RIAA cases. Among the many interesting things to look for: the early-morning argument on October 4, 2007, where Richard Gabriel convinced Judge Davis to change his mind and accept the plaintiffs' proffered jury instruction; the testimony of Jennifer Pariser in which -- according to Cary Sherman -- she "misspoke"; the testimony of the RIAA's expert witness Doug Jacobson; the testimony of the MediaSentry investigator; the technology issues relating to the service performed by Best Buy on Ms. Thomas's hard drive; the voir dire and testimony of the RIAA's expert. And on and on. This was the RIAA's first and only trial, as far as we know. This transcript is a huge help to all of us. On behalf of all of the victims of the RIAA's vicious campaign: Thank you, "Joel Fights Back". -R.B.]

[Ed. note. On page 532 of the October 3rd transcript, when the lawyers and the judge were discussing the making available issue, this passage jumped out at me:

THE COURT: .....I didn't hear any Eighth
Circuit cases that were cited.
MR. GABRIEL: I don't believe the Eighth Circuit
has spoken on the issue, Your Honor. I think we looked for
that.

:)]

Commentary & discussion:

Slashdot
p2pnet.net
ZeroPaid
Digg
Ars Technica
gulli (German)
C. E. Conversations

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

RIAA's motion for interlocutory appeal in Capitol Records v. Thomas denied

In Capitol Records v. Thomas, the RIAA's motion for permission to appeal from the Court's September 24, 2008, decision setting aside the jury verdict has been denied.

District Judge Michael J. Davis ruled that there was "no substantial ground for a difference of opinion" on the question of law presented, and that granting permission for the appeal would not "materially advance the ultimate termination of the litigation".

Judge Davis noted that even "[i]f the Eighth Circuit holds that Jury Instruction No. 15 was a correct statement of the law, this Court must still address the constitutionality of the damages award and the possibility of a retrial remains." Judge Davis has previously observed that "the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs."

December 23, 2008, Decision of Hon. Michael J. Davis, denying RIAA motion to certification of interlocutory appeal

[Ed. note. For you non-lawyers out there: (a) in federal practice, only final judgments are normally appealable; (b) for an order in a federal case to be appealable, the trial court first has to "certify" the order for an "interlocutory" appeal; (c) if the trial court certified it for an appeal, then the appeals court would decide whether it is appealable. Here the trial court has denied the request for certification, so the RIAA's request for an appeal is over. -R.B.]

Commentary & discussion:

Slashdot
p2pnet.net
Ars Technica
lrytas.lt (Lithuanian)
Remixtures (Portugese)
gulli (German)
The Register
El Pais (Spanish)





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

p2pnet publishes its year end summary of RIAA litigation

p2pnet has published its handy, year-end overview of "highlights" of RIAA litigation for 2008:

"The RIAA in 2008: highlights"

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 makes motion for proceedings to be televised over the internet in SONY BMG Music Entertainment v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the defendant has moved for all court proceedings to be televised over the internet through Courtroom View Network. The motion argues:

Information is the currency of democracy, sunshine laws open government. The federal court is open not only as a court of justice but a forum of civic education. WE the PEOPLE are the ultimate check in our constitutional system of checks and balances, we the people of the integrated media space opened and connected by the net in a public domain. Net access will allow an intelligent public domain to shape itself by attending and engaging in a public trial of issues conflicting our society.

Net access to this litigation will allow an interested and growingly sophisticated public to understand the RIAA’s education campaign. Surely education is the purpose of the Digital Deterrence Act of 1999, the constitutionality of which we are challenging. How can RIAA object? Yet they do, fear of sunlight shone upon them.

Net access will allow demonstration by the parties to the jury of the nature and context of the copyright infringement with which Joel Tenenbaum is charged.

Net access will allow an intelligent public domain to shape itself by attending and engaging a public trial prosecuted by a dying CD industry against a defendant who did what comes naturally to digital kids.

Net access will allow educational and public media institutions to build a digital archive and resource for understanding law akin to Jonathan Harr’s A Civil Action reconceived in execution for legal pedagogy in a digital age, Another Civil Action. The immediacy of net-based access to court opinions already allows lawyers, professors, students, and reporters to better keep abreast of the most recent legal developments, but none with the immediacy the Net allows.

If the motion is granted, it will be the first RIAA case of which we are aware to be televised.

Motion and memorandum of law in support of internet audio-visual coverage
Declaration of John Shin
Declaration of Charles Nesson

Commentary & discussion:

p2pnet.net
Slashdot
reddit
enigma_foundry
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

Defendant moves to set aside default in new case in Rochester, New York, SONY BMG Music v. Stade

We have recently learned of a new case in Rochester, New York, SONY BMG Music Entertainment v. Stade, where the RIAA moved for a default judgment, the defendant retained counsel who filed an appearance, and the RIAA apparently refused to open up the default and permit defendant to file her answer. The Court established a briefing schedule and scheduled oral argument for January 22, 2009 at 3:45 p.m. at 1360 United States Courthouse, 100 State Street, Rochester, New York. The oral argument is open to the public.

Summons and complaint
December 4, 2008, order scheduling motion to vacate default
Declaration in support of motion to be relieved of default
Answer

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

RIAA moves for summary judgment in case against Patti Santangelo's kids, Elektra Entertainment v. Santangelo II

In Elektra Entertainment Group v. Santangelo II, the RIAA's case against 2 of Patti Santangelo's kids, the RIAA has moved for summary judgment.

(It appears that the memo of law was filed twice, one time with one set of exhibits, then again with another set of exhibits.)

The kids' opposition papers are due January 30th, the RIAA's reply papers are due February 13th, and the motion is scheduled to be argued on March 25th, at 10:00 A.M., at the federal courthouse, 300 Quarropas Street, White Plains, New York, in the courtroom of Judge Stephen C. Robinson. The argument is open to the public.

The defendants are represented by Jordan D. Glass, of Valhalla, New York.

Memorandum of Law and Exhibits Document No. 79
Memorandum of Law and Exhibits Document No. 80


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

IP Watch Can't Get Confirmation from NYS Attorney General or from ISP's that RIAA's claims are true

An interesting article in "Intellectual Property Watch" by author and journalist Bruce Gain shows that Mr. Gain has tried to obtain confirmation of the factual details in the RIAA's announcement, but has not been able to obtain confirmation of any of it:

RIAA To Scale Down US Copyright Litigation; Details Of New Plan Coming Clear

By Bruce Gain for Intellectual Property Watch

Representatives from the Recording Industry Association of America (RIAA) have confirmed that the organisation has opted to suspend its strategy of suing individuals accused of illegal file-sharing in the United States and to instead work more closely with internet service providers to thwart copyright infringement, but some doubts remain. Details of the RIAA’s revamped campaign remain murky.

After five years and over 30,000 lawsuits targeting individuals in the United States, an RIAA spokesman told Intellectual Property Watch that leading US-based internet service providers (ISPs) have agreed to increasingly take action when put on notice by copyright owners that customers are engaged in illicit file sharing. The ISPs might, for example, send warnings to subscribers then later suspend services if the communications are ignored.

The RIAA spokesman also said the organisation is working with New York Attorney General Andrew Cuomo to form a broad framework for a solution that would involve graduated response tactics against alleged infringers and that would also reduce network congestion due to massive file distribution.

However, RIAA has not yet disclosed the names of the ISPs with which it said it has formed an agreement, which remains confidential. Nor has it specified the terms of the alliance with Cuomo (whose office could not be reached for comment). The RIAA also has not released a statement about its plans to end its lawsuit campaign.

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

Good article in "Computer World" on SONY BMG Music v. Tenenbaum case

Came across a good article by Jay Vijayan of Computer World, about the SONY BMG Music Entertainment v. Tenenbaum case:

Target of RIAA lawsuit says music piracy case has been an ordeal
College student Joel Tenenbaum claims trade group wanted to make an example of him
By Jaikumar Vijayan

December 19, 2008 (Computerworld) To hear Joel Tenenbaum's version of the story, at least, it isn't hard to see why the Recording Industry Association of America's campaign against music piracy has earned the RIAA so many enemies — perhaps contributing to the trade group's decision this week to stop filing lawsuits against people like Tenenbaum.

Tenenbaum, who turns 25 on Christmas day, is a doctoral student in physics at Boston University. He also is involved in a high-profile legal fight with the RIAA for allegedly downloading and distributing songs belonging to several music labels. The recording companies claim to have discovered more than 800 songs stored illegally in a shared folder on Tenenbaum's computer, although the RIAA's case against him only identifies seven of the songs.

The RIAA says that despite its change in strategy, it doesn't plan to drop existing lawsuits. If found guilty of willful copyright infringement, Tenenbaum faces financial penalties that could exceed $1 million dollars — $150,000 per song, the maximum fine allowed by the federal statute under which he is being sued.

Complete article

Commentary & discussion:

eZee.se




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