Recording Industry vs The People: RIAA's "victim impact statement" in US v. Kogill seeks restitution + forced public service announcement

Saturday, March 14, 2009

RIAA's "victim impact statement" in US v. Kogill seeks restitution + forced public service announcement

In the criminal case against a Kevin Cogill, for uploading unreleased Guns 'n Roses Tracks, the RIAA has submitted a "victim impact statement" in support of a request for restitution and an order directing the victim to participate in a "public service announcement".

In a previous criminal case, US v. Dove, the rationale of the RIAA's "victim impact statement", and with it the RIAA's restitution request, were rejected by the Court.

US v. Kogill, victim impact statement

[Ed. note. How's that for "cruel and unusual punishment"? An order directing someone to do a public service announcement for the RIAA? -R.B.]

Commentary & discussion:

p2pnent.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

8 comments:

Eric said...: The RIAA is neither the victim or a party involved in the lawsuit when it's a criminal case. They are a trade group whose stated goal is to stop people from sharing music *through any means necessary*. It would be like MADD submitting victim impact statements to every DWI case.

How is this not prejudicial to the defendant?; March 14, 2009 at 2:44:00 PM EDT
raybeckerman said...: Particularly coming from Mr. Linares, whose averments "under penalty of perjury" have always proved to be -- shall we say -- exaggerated.; March 14, 2009 at 2:47:00 PM EDT
Alter_Fritz said...: Wait a sec, Ray,
you mean Mr. Linares is still free and not behind bars?

Last I remember he stated more then only one time under penalty of perjury that he himself had oversight and all that stuff about the investigators they were using.
And as we learned in the last few weeks, something about this statement must be wrong since the plaintiffs claim that they themself were doing the work, not the 3rd party that linares claimed he was observing and had personal knowledge and control over.

Alter_Fritz is now seriously confused that Carlos Linares is still free and can write stuff in businesses he had no dealing with since RIAA is not a victim as was pointed out already!; March 14, 2009 at 3:15:00 PM EDT
Alter_Fritz said...: Hm, I thought "making available" is not an exclusive right in your copyright laws.
http://blog.wired.com/27bstroke6/files/cogillnewcharges.pdf
I'm too lazy to lookup the text of the other paragraphs mentioned in that document, but now I'm even more confused then before!

Any lawyer dare to explain?; March 14, 2009 at 3:54:00 PM EDT
Anonymous said...: Hey Alter_Fritz, I'll explain and I am not a lawyer.

The lawyers used by the lying, cheating, thieving RIAA are just about as low as you can get. They have created this mess that they are finding themselves in right now and it is only a matter of time before they get bit in the rear from some judge.; March 14, 2009 at 10:27:00 PM EDT
Anonymous said...: Sidenote fact. The IFPI (RIAA's international henchmen) successfully lobbied a law into action in Sweden that makes a person that looses against them in a civil process in court will be forced to pay for a newspaper ad with the persons picture on it saying what a horrible humanbeing that person was for filesharing...; March 15, 2009 at 6:06:00 AM EDT
Anonymous said...: Alter_Fritz, I am not a lawyer either but you have an excellent point.
The defendant was charged with

506 (a) (1) (A) for purposes of commercial advantage or private financial gain;

but not with

506 (a) (1) (C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

The penalties under 18 U.S.C 2319 are not the same for each offense.

I will not speculate as to why this may have been done, but the exclusive distribution right in 17 USC 106 (3) only covers the transfer of ownership and/or possesion of a physical copy of the work, and not the work itself. This just does not happen during an over the wire copy. The ownership and possession of each copy does not change.

just a biased observer; March 15, 2009 at 11:30:00 AM EDT
Alter_Fritz said...: Dodgy,
such a medieval thing they managed to get written in german copyright law too when they lobbied the allegedly corrupt politicos in germany the last few years when the german "UrhG" was "modernized".(*)

But hey, medieval punishments like pillory somebody seems to fit perfectly into the mindset of those technophobic, competition fearing dinosaurs at Warner, EMI, SonyBMG, Vivendi and their straw men at RIAA/IFPI and co.

And in germany it seems these ultra medieval dinosaurs were so rabid and had fun in making this happen that this modern day pillorying is even mentioned 2 times in the law!
(*) http://bundesrecht.juris.de/urhg/__103.html
and
http://bundesrecht.juris.de/urhg/__111.html

(But when it comes to have the proceedings before a sentencing publicly ... well, we see how much they like that one right now in Tenenbaum); March 15, 2009 at 12:09:00 PM EDT

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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