Wednesday, January 28, 2009

Oral argument in Capitol Records v. MP3Tunes now available online

Oral argument of EMI's motion to dismiss counterclaims in Capitol Records v. MP3Tunes.com, Inc. took place on January 16, 2009.

EMI argued that since MP3Tunes did not comply with the DMCA notices it contends were improper, it sustained no damages.

The argument started off with the following exchange:

THE COURT: Do you agree that if the plaintiffs distribute music for free on the Internet, your client distributes music for free on the Internet, the fact that those songs are somewhere on MP3tunes Web sites' is not infringement?

MR. BART: I think it still is infringement.
A copy of the transcript is now available online.

Oral argument of plaintiffs' motion to dismiss counterclaims, January 16, 2009



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

13 comments:

Alter_Fritz said...

Well, we had already established that Mr. Bart is not the smartest, hadn't we?
Or maybe he is indeed very smart, and just out of respect for his clients (those well known and allegedly respected guys) he plays dumb so that they don't notice how stupid they themself truly are in not realizing how internet works?

Anonymous said...

THE COURT: Do you agree that if the plaintiffs distribute music for free on the Internet, your client distributes music for free on the Internet, the fact that those songs are somewhere on MP3tunes Web sites' is not infringement?

MR. BART: I think it still is infringement.

I really think the above shows just how clueless these people are. I mean come on now, Mr. Bart, if these songs have been "released to the wild" so to speak, then the average joe would have definitely considered them fair game.

Sheesh!

derivative said...

Without reading the whole transcript or having other details, I'm not sure that I disagree with what Mr. Bart is saying.

I can "release" a file on the internet, and have a "clickwrap" license where you have to agree to my terms before you get the file. This sort of thing happens all the time, and allows the file provider to drive traffic to his own website (where traffic == dollars, for advertising or whatever.)

Just because no money changes hands doesn't mean that a copyright is null and void.

In fact, I would think a cleverly constructed clickwrap license would be superior for the RIAA's purposes to their lame argument that, if somebody is caught red-handed with a file, they MUST have seen the copyright notice on the CD case.

The other thing to bear in mind is that, as with non-DRMed tunes from the Apple store, things you download from official free sites are probably watermarked, so unless you go out of your way to strip the watermark (which would create a non-authorized derivative work), if you download a tune from one of these legitimate places, and give it to a friend, and he puts it up on a torrent, you'll probably be receiving unwanted attention -- if you bought it from Apple, for example, they'll probably already have your personal details. The fine print of the contract may even allow them to automagically withdraw their $3000 from the same credit card you used to purchase the tune for $0.75.

of course, this being the RIAA, their watermarking is probably easily broken, so you may be at risk if you ever download a tune and don't even share it -- somebody could spoof the watermark to look like a tune in the wild came from you.

Don't think for a minute that times are getting any less scary.

Ray Beckerman said...

if they were lawfully available to ANYONE who wanted one on the internet EMI can't then bring a lawsuit against mp3tunes or its customers....

copyright law is not that stupid, derivative....

only emi and its lawyers are... and you if you've fallen under their spell....

Anonymous said...

"This, again, is deceptive conduct. They said we don't put anything on the Internet for free. They did. They lied."

Ray, how about starting a thread of all the lies Plaintiff's Counsel has committed?

Ray Beckerman said...

I don't have the 10 years it would take to construct such a thread. Would you take care of it for me?

Alter_Fritz said...

1 THE COURT: On that point, why isn't -- and I may have
2 asked you this before the break, but why isn't the demand that
3 MP3 remove all EMI tunes a misrepresentation if in fact EMI
4 knows that some of its tunes are available for free or offered
5 for free on the Internet?
6 MR. BART: There are two answers to that. One is
7 that -- the simple one is that they didn't rely on it, they
8 didn't take it down, so there is no damage.
9 But the other one is that we can authorize free uses
10 of our copyrighted material in certain specific ways. I gave
11 you the streaming example beforehand. They can then make use
12 of it and allow copies to be made of it, which is what we're
13 contending in the take-down letter.
14 We're not contending that it is the mere fact that
15 there is an EMI link up there that is the violation. We're
16 saying that you do something with that link. You operate Web
17 sites and operate them in a manner that we believe violates our
18 rights to control our own copyrights. So about enabling people
19 to click on a single link and go from that site, which may be
20 streaming it to make permanent copies, make 12 permanent copies
21 for themselves and all their devices and who knows where else,
22 is a violation of our rights. That's our allegation.
23 And the scope of that allegation is going to be
24 decided by your Honor. It is a perfectly legitimate legal
25 position for us to be taking.
-
-
Alter_Fritz:
90 No, it is not! It is perfectly idiotic stupidity and lack of
91 knowledge how the interwebs works. If you, as the copyrightholder
92 offer your content for example behind links that look like
93 http://capi001.edgeboss.net/download/capi001/katyperry/audio/katyperry_usogay.mp3
94 then everybody is free to mention those links too.
95 And if a guy is much more clever and business orientated then
96 you dinosaurs are, then he can even create a business around the mentioning
97 of a simple link. Are plaintiffs suggesting that a link is
98 copyrighted content that noone else is allowed to use?
99 If that is the case, better switch off the interweb in the USofA then!

Anonymous said...

Alter_Fritz: As you say. Plaintiffs cite no precedent, nor does one exist, that would make their case.

derivative: If plaintffs had wrapped up their music in some proprietary or shielded form that required a shrinkwrap license agreement, that might be interesting. But they didn't -- they just put some mp3s out there for anyone to grab or link to.

XYZZY

Alter_Fritz said...

Shame on me!
Despite my obsession with clarity about language, I did not even saw that Mr. Bart had not answered the question the judge in effect asked him.

Mr. Bart answered the not asked question why there might not be any couse of action with regards to damages.

But the judge asked him why not it might be a misrepresentation by Mr. Bart when his client puts songs up legally and he claims they have not done so.

I guess Mr. Bart knows the answer to that
-which is "yes your Honor, my law firm Jenner & Block and I were misrepresenting facts --a layman would say we lied--, so your honor we are at your disposal, please hit us with rule 11 sanctions"-
so he preferred to draw a smoke grenade by answering about damages.

Is this lawyer really arguing that if there is (alleged by them!) no damage from a misconduct by him as lawyer or by J&B, HRO and the likes then this behaviour is no misconduct at all?

No harm done, no foul or what?
Who gave this guy a license to practice as lawyer then?!

Blame me for not having seen that one when I quoted him first.

Anonymous said...

As this man sees it, EMI contends that just because they gave this song away to me for free, I am not free to either give it to someone else as well, nor am I allowed to tell someone else where I got it for free in the first place.

When expressed in those simple terms this man cannot understand why this case has not already been booted from our overloaded judicial system.

{The Common Man Speaking}

Ray Beckerman said...

Copyright law is pretty clear that once you give something to the public you can't take it back. EMI's position with respect to songs it gave to the public is frivolous.

Alter_Fritz said...

For Mr. Bart and EMI shareholders that still think suing everybody and his last laserprinter is a good thing: I found these two sideloadable tracks
http://www.sideload.com/cb/track/?id=131779
and
http://www.sideload.com/cb/track/?id=46055

Topic is "How the Internet works"

Hope That Helps (HTH)

--
A_F

Anonymous said...

"Would you take care of it for me?"

How about, If their lips are moving, there lying?