Recording Industry vs The People: RIAA asks court not to allow FSF to submit revised amicus curiae brief in SONY BMG Music Entertainment v. Tenenbaum

Wednesday, May 13, 2009

RIAA asks court not to allow FSF to submit revised amicus curiae brief in SONY BMG Music Entertainment v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has filed papers opposing the Free Software Foundation's motion for leave to file a revised amicus curiae brief.

Plaintiffs' opposition to FSF motion for leave to file revised amicus curiae brief
Exhibit 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

12 comments:

Anonymous said...: Paraphrasing for those who don't want to read the whole thing: "Your Honor, we've successfully misrepresented facts to pursuade several technology-ignorant judges in other jurisdictions that making available constitutes distribution. Since the FSF disagrees with us, wants to call us out on these self-serving shenanigans, and wants you to be less susceptible to being duped by us, they are biased liars and should be ignored. Please also ignore their interpretation of a case that makes statutory damage minimums seem excessive; that case is irrelevant not because our claims are fair or based in any fact whatsoever, but because Congress was wise and unfailing when we successfully lobbied them to codify such numbers. Also, since 'potentially millions' of distributions occurred, actual damages are 'incalculable', but we're such nice people, we're willing to settle for less than the statutory minimums, so the FSF shouldn't even be bringing up the issue at all." Did I miss anything?; May 13, 2009 at 6:47:00 PM EDT
raybeckerman said...: The way I read it is :

Judge,

1. We have no response to what the Supreme Court said, or what other courts and legal scholars have said, so please don't accept the brief, which describes what those authorities have said.

2. Even though we wanted the judge in the Capitol Records v. Thomas to give a jury instruction that the jurors could award up to $150,000 per file, and he did... we didn't really mean it.

3. Even though you wrote about 10 pages in this consolidated case in your March 31, 2008, decision in London-Sire v. Doe, describing what is needed to prove a distribution, and even though we have never proved any of that in any case, and could not prove it against Mr. Tenenbaum, either, you were wrong when you made that decision.; May 13, 2009 at 7:01:00 PM EDT
raybeckerman said...: Oh yes, and...

4. Mr. Beckerman's claim that the actual damages is approximately 35 cents per unauthorized download is not true (but we're not saying how much it really is); and

5. The brief shows how strongly FSF disagrees with our damages theory.

6. We're willing to settle this case for less than the minimum statutory damages, therefore you should disregard our claim for statutory damages of $750 to $150,000 per song file.

7. The amicus brief "criticizes... the United States of America" [?!]

8. Statutory damages and punitive damages are "fundamentally different", therefore the US Supreme Court was in error when it treated 'punitive awards' of statutory damages and 'punitive awards' of punitive damages as fundamentally the same.

9. Also the DOJ must have been wrong when it said to Congress that statutory damages were similar to punitive damages.

10. Damages of up to $150,000 for download of a song file with a retail value of 99 cents is reasonable and proportionate.

11. Mr. Beckerman accused us of attempting to blur the distinction between damages for an unauthorized download and damages for distribution; our answer to that is to continue to blur the distinction, as we ignore the point made in the amicus brief that the actual damages for a download are in the neighborhood of 35 cents.

12. Mr. Beckerman accuses us of erroneously claiming that a lost download is tantamount to a lost sale; our answer to that is to continue claiming that each lost download is tantamount to a lost sale, and to ignore the caselaw rejecting that claim.

13. Mr. Beckerman says "speculation" has no place; our answer to that is to speculate on the "incalculable" harm Joel Tenenbaum has caused to us.Did I miss anything?; May 13, 2009 at 7:18:00 PM EDT
RTP said...: Don't forget the obvious digs in the filing - true to the HRO (and now Dwyer & Colorra)code, if you don't have a real legal underpinning to your motion, attack opposing counsel.

Once again, it's unbelievable that the RIAA can't find competent counsel.; May 13, 2009 at 11:28:00 PM EDT
raybeckerman said...: RTP said:

Once again, it's unbelievable that the RIAA can't find competent counsel.What's so hard to believe? Why would any lawyer with any self respect take one of these cases?

What would they say at cocktail parties if someone asked them what kind of law they practice: "I sue children, single moms, and other defenseless people for extortionate amounts of money for things they usually didn't do, in order to get them to pay extortionate settlements".; May 14, 2009 at 9:54:00 AM EDT
raybeckerman said...: Sorry derivative I had to reject your lengthy submitted comment because it had some legal errors and, believe it or not, overstated the legal position the RIAA was taking. I.e., you were actually giving them MORE credit than their arguments merited.; May 14, 2009 at 9:57:00 AM EDT
derivative said...: That's OK. I mainly submitted it to see if I could get you to laugh, anyway.; May 14, 2009 at 10:16:00 AM EDT
Anonymous said...: If memory serves, I believe one of the purposes of statutory damages is to establish an equitable amount when actual losses couldn't be proven.

Here, RIAA seems to be trying to assert that their losses are so great that statutory damages are constitutional (or so I read it).

If that's the case, then why haven't we seen any evidence to support their argument? I would think their quarterly profits amortized by source of income would be enough to prove the point.

'Our net profits from sales of CD's for nth quarter 200x were $DOLLARS. We sold $NUMBER of CD's. $DOLLARS profit divided by $NUMBER of CD's comes out to $AMOUNT per CD. Our profits per CD were $AMOUNT. 750 is not more than X times $AMOUNT, and therefore, statutory damages is/are constitutional.'

Or is someone trying to hide something?

-Quiet Lurker; May 14, 2009 at 10:52:00 AM EDT
raybeckerman said...: A_F, I rejected your comment because you appear to have overlooked the wording of 17 USC 106(3) and the holding of this court in London-Sire v. Doe, March 31st decision, as to what constitutes a distribution.; May 14, 2009 at 12:53:00 PM EDT
raybeckerman said...: A_F read the damn statute. Ever hear of "sale or other transfer of ownership, or license, lease or lending"? Ever hear of fact that it has to be disseminated to "public"? Ever hear that there has to be proof of particular file being infringed for there to be a copyright infringement?

Are you trying to be their lawyer now? If you want to get more and more careless, they'll want to hire you.; May 14, 2009 at 2:11:00 PM EDT
Alter_Fritz said...: Ray, I have read the statute.
That's why I was so puzzled about Exhibit B and its significance.

I mean, Come on, Eve and Tim from HRO can't be so stupid, can they?

On a second thought...

Mabe they hope to trick *this* judge like they tried (in the end unsuccessful) with Judge Davis?!

Boy would I be mad with the HRO lawyers when I were the judge and got this Exhibit B from them as allegedly proof of something!; May 14, 2009 at 2:23:00 PM EDT
raybeckerman said...: Yes they can be, and are, that stupid.; May 14, 2009 at 2:27:00 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