Recording Industry vs The People: EMI sues Seeqpod and Favtape and management, and threatens their investors, for copyright infringement in Capitol Records v. Seeqpod

Tuesday, February 24, 2009

EMI sues Seeqpod and Favtape and management, and threatens their investors, for copyright infringement in Capitol Records v. Seeqpod

EMI and its affiliates have commenced a new copyright infringement case in New York against Seeqpod and Favtape and against their management investors. They also threatened to add additional investors as defendants.

The name of the case is Capitol Records v. Seeqpod

Seeqpod was sued by Warner Bros. Records in January, in Los Angeles.

Complaint

Thanks to michaelrobertson.com for bringing it to my attention.

[Ed. note. This trend towards threatening investors is quite disturbing, as it seems a calculated attempt to discourage investment in emerging technologies, something our country needs to encourage, rather than discourage. I hope my readers will take this up with their Representatives and Senators. -R.B.]

Addendum 2/27/09:
[Ed. note. I notice that the plaintiffs' attorneys are not the usual suspects, Jenner & Block. They are a mid-sized New York firm, Pryor and Cashman. I don't know if this means anything but it bears watching. Maybe the record companies have finally realized that Jenner & Block's "architecture" for this litigation campaign has been a flawed "blueprint". -R.B.]

Commentary & discussion:

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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

5 comments:

Anonymous said...: This man feels that these Big Media Plaintiffs ought to actually "win" one of these cases before filing additional ones in a blatant attempt to cow the Defendants.

{The Common Man Speaking}; February 24, 2009 at 6:46:00 PM EST
Alter_Fritz said...: now slowly but for sure it starts to get laughable with those rabit EMI guys and their lawyers!
They seem to be really on a crusade to sue everyone and his last ear!
Before we know it, they might file charges against the "almighty creator of mankind" for contributory copyright infringement for that it gave mankind the ability to hear music in the first place .

Can't your politicians pass a law that give a corporation a certain pool of numbers of suits they are allowed to file in their corporate history?

Maybe then EMI would choose wiser and would only file charges when they are justified and reasonable.

As it looks in the moment it seems the new owner of EMI is either a guy that suffers from ICD10 F22.8 that they sue everybody and their last ear with his explicit permission and encouragement.
OR
it is he is such an incompetent leader/owner of this corporation that the lawyers that has contracts with EMI are simply running loose on their own totally uncontrolled/unchecked.

Both is in the end so extremely bad for EMI, I'm wondering if the shareholders of terra firma the new owner of EMI are sane themself after all.

They can't seriously believe to rewind the clock of time so much.

Even the most conservative politicians can't be so extreme "progress"-phobic that it would fit the agenda that EMI seems to have!

--
A_F; February 24, 2009 at 7:27:00 PM EST
Unknown said...: They use a couple of quotes from bloggers as an attempt at "evidence" of how the system works in their complaint? Really... that's a bit of a reach.; February 24, 2009 at 7:41:00 PM EST
Alter_Fritz said...: oh, one last comment before continuing to ignore EMI and their "product":
While I appreciate that they ceased to try to establish as a matter of factual allegations in their papers that they are "well respected", In my opinion paragraph 45 can safely be described as revisionistic nonsense and pure self delusion.
Please evil4 lawyers stop such nonsense and stick with the facts in your papers. It was the trade organisation of your clients that tried to sue the mp3 player into nonexistence in the first place for example!; February 25, 2009 at 12:01:00 AM EST
Matt Fitzpatrick said...: Looks like Warner's sued Seeqpod, too, in L.A. But only Seeqpod, not any individuals. Defendants might be wise to seek consolidation of the two cases in L.A.

Hey, we should start a pool. My money's on a cut-and-run dismissal without prejudice against the individual defendants -- after putting them through the time and expense of pleadings, discovery, and motion practice, of course.

The crystal ball's hazier on the suits against SeeqPod itself. I think Seeqpod will prevail on appeal to the search engine fair use friendly Ninth Circuit, but it could go either way in district court, and it could go either way in the Second Circuit. Don't mean to knock your home turf, Mr. Beckerman, but the Second Circuit has some strange ideas about Internet links and the DMCA.

My sympathies for the gentlemen being sued. I hope this doesn't deter them from continuing to do good things for culture and technology.; February 25, 2009 at 1:50:00 AM EST

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove