Recording Industry vs. The People

Monday, June 22, 2009

RIAA asks court to assess attorneys fees against Joel Tenenbaum for discovery motion

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has made a motion to punish Joel Tenenbaum by assessing attorneys fees and costs against him for the RIAA's motion to compel discovery, which the Court had granted.

Plaintiffs' motion to assess attorneys fees & costs against Joel Tenenbaum

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

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posted by Ray Beckerman @ 6/22/2009 08:03:00 PM

8 Comments:

while I have a feeling (because of the "warning tone" of some of the last few entries of Judge Gertner in the Tenenbaum case) that she might be inclined to grand plaintiffs' motion here, I hope she puts her alleged feelings beside and rules purly based on objective facts!
Given that, I do hope that she will punish Eve Goldstein Burton also purely on facts for the frivolous motion RIAA-Eve made here with all the willful misstatements about the issue at hand for this motion and not because Judge Gertner might feel that this Eve Goldstein Burton should be punished because she is "full of it" (her habit of telling stuff that has no basis in objective facts I mean! See in LINDOR the papers signed by Eve Goldstein Burton as example for her unethical habits!) but because of behaviour that is attributable to her in THIS case!
Just as it should be the case on the other side when it comes to Tenenbaum and an incident that has nothing to do with defendant Tenenbaum but with 3rd parties like some guys named Ray and Charles!

By Alter_Fritz, at June 22, 2009 8:23:00 PM EDT

P.S. I forgot the footnote regarding the example of Eve Goldstein Burtons Behaviour that runs IMO contrary to the spirit of ethical behaviour and -at least as I feel it- Rule 11.
Eve Goldstein Burtons's modus operandi of telling misstatements

hth
A_F

By Alter_Fritz, at June 22, 2009 8:31:00 PM EDT

That's... odd. Though I guess it's perfectly par for the course in this case.

By Justin Olbrantz (Quantam), at June 22, 2009 8:40:00 PM EDT

I know you don't like to discuss this circus of a case, but if defendant's council has certified that a sound recording was posted and it came from a completely independent source then WTF!? It's a completely new and independent copyright violation distinct from any original claim.

At this point I hope Tenenbaum has sought a second opinion since his "legal" team has probably managed to put themselves into a whopping conflict of interest through their independent action. If they intend to use the information at trial it would be hugely prejudicial as well.

All in all, one big mess.

By Eric, at June 22, 2009 9:51:00 PM EDT

I wish you would clarify when you use the name Ray that you're not talking about me.

My prediction: motion denied (quickly).

By Ray Beckerman, at June 22, 2009 9:55:00 PM EDT

Clarification:
In my previous comment I was referring to this Ray who allegedly created a password protected archive container and mailed the storage location and the password to his professor Charles Nesson who then made this mail public on HIS own blog. I was NOT referring to Ray Beckerman.

hope that helps
Alter_Fritz

By Alter_Fritz, at June 22, 2009 10:26:00 PM EDT

Ray,
Came across this article. I couldn't find further references, but thought you may have heard about it.

http://www.theregister.co.uk/2009/06/23/nesson_slap/

-K-

By Anonymous, at June 23, 2009 11:22:00 AM EDT

Anonymous K

That article is quoting from this decision.

By Ray Beckerman, at June 23, 2009 1:07:00 PM EDT

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"Such a combination may expand the potential statutory damages so far beyond the actual damages suffered that the statutory damages come to resemble punitive damages.....[S]uch a distortion could create a potentially enormous aggregate recovery for plaintiffs, and thus an in terrorem effect on defendants, which may induce unfair settlements. And it may be that in a sufficiently serious case the due process clause might be invoked... to nullify that effect and reduce the aggregate damage award." US Court App., 2d Cir., June 2, 2003, Parker v. Time Warner, 331 F.3d 13

"[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

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"The defenses which have possible merit include... whether the amount of statutory damages available under the Copyright Act, measured against the actual money damages suffered, is unconstitutionally excessive...". -Hon. Janet Bond Arterton, Dist. Judge, D. Connecticut, February 13, 2008, Atlantic Recording Corp. v. Brennan, 534 F. Supp. 2d 278

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"'[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

"The disparity between compensatory and punitive damages in this case further supports the conclusion that the punitive damages award is unconstitutional .... Although the Supreme Court has repeatedly rejected the use of bright-line rules, it has cautioned that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process,” State Farm, 538 U.S. at 425, and it has noted that “an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.” Id. (citing Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24 (1991)); see also Clark, 436 F.3d at 606...... Here, defendants’ conduct, although willful, was not highly reprehensible ..... [A] ratio of closer to 1:1 or 2:1 is all that due process can tolerate in this case ......" -U.S. Ct. App., 6th Cir., March 25, 2008, Bridgeport Music v. Justin Combs Pub., 507 F.3d 570, cert. denied 2008 U.S. LEXIS 6770

"[T]he prevailing party in Copyright Act litigation is presumptively entitled to an award of fees under § 505....In the case of prevailing defendants, we have described this presumption as "very strong."...There is no question that a dismissal with prejudice makes the defendant the prevailing party for purposes of an award of attorney's fees under § 505.... This is no less true when a case is dismissed because the plaintiff "threw in the towel"--that is, where the dismissal is on the plaintiff's own motion.", US Court of Appeals, 7th Cir., May 27, 2008, Mostly Memories v. For Your Ease Only, 526 F.3d 1093

"[Defendant] obtained a favorable judgment. That this came about when [plaintiff] threw in the towel does not make [Defendant] less the victor than it would have been had the judge granted summary judgment or a jury returned a verdict in its favor. [Plaintiff] sued; [Defendant] won; no more is required." U.S. Court of Appeals, 7th Cir., 2008, Riviera Distributors, Inc. v. Jones, 517 F.3d 926

"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

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"Plaintiff ... must present at least some facts to show the plausibility of their allegations of copyright infringement....However, .... Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation."
-Hon. Rudi M. Brewster, Senior District Judge, Southern District of California, August 17, 2007, Interscope v. Rodriguez,2007 WL 2408484

"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

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"Recording Industry vs. The People"
By Ray Beckerman

-I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits brought by four large record companies, and other areas of concern to digital online copyright law.
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"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

"If the owner of the shared folder simply provides a member of the public with access to the work and the means to make an unauthorized copy, the owner is not liable as a primary infringer of the distribution right, but rather is potentially liable as a secondary infringer of the reproduction right....." -Hon. Neil V. Wake, District Judge, District of Arizona, April 29, 2008, Atlantic v. Howell, 2008 ILRWeb (P&F) 1665
"[N]either Florida's litigation privilege nor the Noerr-Pennington Doctrine serves as a shield for sham litigation." -Hon. Richard A. Lazzara, District Judge, Middle District of Florida, September 19, 2007, UMG v. Del Cid, 2007 ILRWeb (P&F) 2721
""[W]ithout actual distribution of copies.... there is no violation [of] the distribution right." 4 William F. Patry, Patry on Copyright ... 13:9 (2007); see also id. N. 10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)(affirming the district court's finding "that distribution requires an `actual dissemination' of a copy")". -Hon. Janet Bond Arterton, District Judge, District of Connecticut, February 13, 2008, Atlantic v. Brennan, 534 F. Supp.2d 278
"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
"Merely making a copy available does not constitute distribution....The statute provides copyright holders with the exclusive right to distribute "copies" of their works to the public "by sale or other transfer of ownership, or by rental, lease, or lending." 17 U.S.C. ...106(3). Unless a copy of the work changes hands in one of the designated ways, a "distribution" under ...106(3) has not taken place." -Hon. Neil V. Wake, District Judge, District of Arizona, April 29, 2008, Atlantic v. Howell, 2008 ILRWeb (P&F) 1665
"In National Car Rental System, Inc. v. Computer Associates Int'l, Inc., the Eighth Circuit stated that "`[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.' 2 Nimmer on Copyright [sec.] 8.11[A], at 8-124.1." 991 F.2d 426, 434 (8th Cir. 1993)..... Neither party presented this Eighth Circuit case to the Court." (Emphasis supplied) -Hon. Michael J. Davis, District Judge, District of Minnesota, May 15, 2008, Capitol v. Thomas
"An offer to distribute does not constitute distribution"-Hon. Neil V. Wake, District Judge, District of Arizona, April 29, 2008, Atlantic v. Howell, 2008 ILRWeb (P&F) 1665
"[P]laintiffs unreasonably rejected or sought to suppress evidence to the extent it tended to exonerate defendant, such as the expert's report concerning the examination of defendant's computer hard drive or her own statements about who had access to her computer. [W]hen plaintiffs dismissed their claims in June 2007, they apparently had no more material evidence to support their claims than they did when they first contacted defendant in February 2005..... (Emphasis supplied)" -Hon. Donald C. Ashmanskas, Magistrate Judge, District of Oregon, September 21, 2007, Atlantic v. Andersen, 2008 WL 185806
"[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

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"[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

QUOTATIONS FROM DECISIONS

"While the Plaintiffs object to the narrowcasting of this proceeding, .... their objections are curious.....[They] have represented that they initiated these lawsuits ...because... they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation."
-Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, January 14, 2009, London-Sire Records v. Does 1-4
"Merely because the defendant has "completed all the steps necessary for distribution" does not necessarily mean that a distribution has actually occurred. It is a "distribution" that the statute plainly requires. See 17 U.S.C. [sec.] 106(3)."
-Hon. Nancy Gertner, District Judge, District of Massachusetts, March 31, 2008, London-Sire v. Doe 1, 542 F.Supp.2d 153, 2008 WL 887491
"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
"[D]istributing unlawful copies of a copyrighted work does violate the copyright owner's distribution right and, as a result, constitutes copyright infringement. In order to establish "distribution" of a copyrighted work, a party must show that an unlawful copy was disseminated "to the public." 17 U.S.C. [sec]106(3); see National Car Rental v. Computer Associates , 991 F.2d 426, 434 (8th Cir. 1993); 2 Nimmer, [sec]. 8.11[A] at 8-137."
-Hon. John D. Butzner, Jr., Fourth Circuit, June 30, 1997, Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199
"[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
*List of quotations