Recording Industry vs The People: I decided to take the "IP Colloquium" down

Wednesday, March 04, 2009

I decided to take the "IP Colloquium" down

I've decided to take down the "IP Colloquium" that was previously posted.

1. I think it was a biased 1-sided hatchet job.

2. The streaming kept causing my browser to crash, and eventually caused my whole computer to crash.

3. My readers agreed with me that it was a hatchet job, and that the MP3 Player was causing their browsers to crash as well.

4. To those of you didn't get to hear it.... you didn't miss anything.

Commentary & discussion:

Copyright Litigation Blog

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

7 comments:

raybeckerman said...: Since I've taken down the other post about the so-called "colloquium", I'll reproduce here the comments I received:; March 4, 2009 at 4:32:00 PM EST
raybeckerman said...: Shane:

Given how the RIAA reflexively considers all downloading illegal and that proceedings should not be recorded I get a strange, irrational fear when I click on the completely legal "download" button to hear this Colloquium... :-( I think the RIAA's campaign of terror is having an effect...just not one that benefits artists or creativity.; March 4, 2009 at 4:33:00 PM EST
raybeckerman said...: Shane:

"The IP Colloquium, in partnership with UCLA Law School, hosted a discussion about the statutory damages unconstitutionality defense in SONY BMG Music Entertainment v. Tenenbaum."

The "IP Colloquium" is a misleadingly named 1 hour audio program featuring edited interviews by IP Law Professor Doug Lichtman. Lichtman is falsely called the "moderator" rather than interviewer. It is not a colloquium.

The host is clearly more than just playing at devil's advocate but, instead, actually thinks that statutory damages of $150,000 per song on Joel are reasonable even though they have *nothing* to do with any damage actually and directly related to damage alleged to have been caused by Joel. The host has no problem with the RIAA wielding the power of a government criminal prosecutor with none of the obligations or higher standards of evidence, and with none of the criminal procedural protections for defendants.; March 4, 2009 at 4:33:00 PM EST
raybeckerman said...: Anonymous:

Hi Ray,

I've been reading your blog for quite a while. I decided to listen to this and was really disturbed by the moderator's pure lack of comprehension for what is actually happening. This isn't playing devil's advocate, it's more of a forum to push his RIAA-centric ideas to the listeners. I had to quit listening because it was starting to make me wish I hadn't had any lunch today.

Rob; March 4, 2009 at 4:34:00 PM EST
raybeckerman said...: Anonymous:

Warning: the flash MP3 player used by the ipcolloquium site is among the worst I've ever used. It used about 99% of my CPU to play, and could not be terminated without closing firefox.

Aside from that, Prof. Lichtman appears to have misunderstood almost everything that Prof. Nesson seemed to be saying. The only benefit from this discussion appears to be that the RIAA general counsel now knows much more about how Nesson will be presenting the case.

-- John Doe #135246 :); March 4, 2009 at 4:34:00 PM EST
raybeckerman said...: Shane:

From the IP "colloquium's" about page (which is seemingly copy protected by using an all flash interface which makes cutting and pasting text difficult...)

"The Intellectual Property Colloquium is an online audio program devoted to intellectual property topics. We aspire to be something like an NPR talk show, but focused on copyrights, patents, and aimed primarily at a legal audience. Our programs are neither lectures or debates. They are instead conversations, with guests drawn from academia, the entertainment community, the judiciary and various technology industries."

So, if their programs are neither lectures nor debates where do they get off calling them "colloquia"?? And the interviewer a "moderator??" I call foul. Colloquium has a specific meaning and the name "IP 'Colloquium' " seems deliberately chosen to give a false impression of what the the IP audio program realy is.

Just the about page seems to hint at a pro-IP position. And Doug Lichtman? He's one of the Lawyers who joined the Viacom legal team in their bid to sue Google over You Tube. But he didn't just join there team, he even wrote an Op/Ed for the LA Times where he explains his position:

"The problem is that users upload excerpts of copyrighted movies and television programs without authorization, and then YouTube happily distributes that contraband to the public. And Google, knowing all this and benefiting from the attention the unauthorized videos bring, has refused to take even simple steps that would reduce the infringement without meaningfully interfering with the service's legitimate use. That is what led me to join Viacom Inc.'s legal team."

....where he conveniently forgets to mention that You Tube complies with with the DMCA takedown notices as required by the DMCA lobbied for by the copyright industry, including his client Viacom. By "simple steps" Doug means "do whatever Viacom demands without question."; March 4, 2009 at 4:36:00 PM EST
raybeckerman said...: And speaking for myself... apologies to all of you who wasted your time listening to it, or attempting to listen to it.; March 4, 2009 at 4:37:00 PM 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