In Capitol Records v. Thomas-Rasset, the defendant filed her briefs supporting her evidentiary objections to plaintiffs' attempted use of (a) uncertified sound recordings and (b) exhibit 4, a "stack" of copyright registration documents.
The objections are scheduled to be heard at 8:00 AM.
Defendant's memorandum in support of objection to uncertified sound recordings
Defendant's memorandum in support of objection to exhibit 4
Plaintiffs' memorandum in opposition to objection to registration documents
Plaintiffs' brief opposing objection to uncertified sound recordings
[Ed. note. Both objections are, in my opinion, unassailable. And I don't see how the plaintiffs can prove their case, once the objections are sustained, as I think they must be. So, as I see the plaintiffs' copyright case: case closed. Next step: thank the jury, send them home, and set a briefing schedule for the attorneys fees motion. No constitutional issues, no 'making available' theory. Nothing. Just plain old garden variety absence of admissible evidence. -R.B.]
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
Tuesday, June 16, 2009
Thomas-Rasset files briefs supporting objections to plaintiffs' uncertified sound recordings and untimely exhibit 4 'stack' of registration documents
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8 comments:
"Just plain old garden variety absence of admissible evidence."
Maybe it is just my more fatalistic view of the proceedings(*), but it is not that absence of admissible evidence or the absence of an expert that knows what he wants to talk about from his owns knowledge instead of hearsay has so far prevented anything of/from this "hammer" (Judge Gertner's description) swinging MAFIAA plaintiffs.
It seems Ray you really believe that justice is served in your country instead of that the demands of multinational recordcompanies are served there!
(*) for example I heard that the second sony guy (will he get a job after this trial at riaa like pariser got last time?) again tried this "format shifting ones own CDs into a computer is copyright infringement and that is what this case is about"-thingy to maybe confuse the jury what they need to rule about or not! (jammie's 200 CDs she transfered into .WMA files on her HDD)
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A_F
Defendant counsel wrote:
Secondary evidence of the contents
of a public record can be given only if "a copy which complies with [either Rule 902 or the rule of witness testimony] cannot be obtained by the exercise of reasonable diligence." F.R.E. 1005
I believe this to be a reasonable basis for the judge to throw out the first objection. The Copyright Office does not have copies of the sound recordings in question (they are older than 5 years old) and as a result "cannot be obtained by the exercise of reasonable diligence." As a result, the CDs offered by Plaintiffs, and certified copies of registered CD SKUs should be treated as acceptable secondary evidence.
I do agree with Ray, however, that the second objection (Defendant's memorandum in support of objection to exhibit 4) is water tight.
It seems to me that the RIAA has avoided the trouble of finding the master recording, likely because in most cases the masters are not stored well by the big companies. The master is likely degraded and sounds different than the distributed copy, and it is also likely in the hands of either the original artists or the producer. Regardless of degradation, it's in a different recording format (tape if the song is not very recent) which has a different tone altogether. The audible difference would create an arguable point for the defense.
This leads to the question of how the concept of copyright is lent to audio recordings. What constitutes a copyright? Is it the actual sound? Is it the imprint on the media? Is it the lyrics and musical notes? When does the copyright begin to take effect and how long does it last? Is it the moment it's registered? Is it the moment it's recorded? Is it the moment it sells it's first copy? I don't know which songs are at issue in this case, but it's possible that these questions are pertinent to at least one of them.
If they are not using certified copyright office copies in the complaint, I would assume that they have to apply the law as if it were not registered with the copyright office.
I agree with T2 that, in theory, the duplicate CD is sound ( no pun intended ) but the fact that the MP3's are a match to that audio is only one, of several, necessary elements to copyright infringement. OTOH, this is a linchpin case and the RIAA should be putting documentation or a witness on the stand to state for the record that they contacted both the copyright office and the library of congress and they no longer have the originals per policy. They should be putting on the audio engineer that mastered the tracks and the employee that submitted the recording to the copyright office. Of course they needed to do this two weeks ago.
As for the chain of title it's toast. You can't just drop that kind of evidence on the eve of the trial and expect it just to sail in without contest.
I agree with T2 that, in theory, the duplicate CD is sound ( no pun intended ) but the fact that the MP3's are a match to that audio is only one, of several, necessary elements to copyright infringement. OTOH, this is a linchpin case and the RIAA should be putting documentation or a witness on the stand to state for the record that they contacted both the copyright office and the library of congress and they no longer have the originals per policy. They should be putting on the audio engineer that mastered the tracks and the employee that submitted the recording to the copyright office. Of course they needed to do this two weeks ago.
As for the chain of title it's toast. You can't just drop that kind of evidence on the eve of the trial and expect it just to sail in without contest.
Does the RIAA argument hold any validity? That under federal rules, any copy they buy from the store is legally the original?
It does baffle me how they might get around the "we don't plan on having an exhibit 4, it's only a placeholder to prevent numbering confusion" statement they made to defense earlier, and the fact that the exhibit 4 was never made available to defense.
Is the judge more likely to say "let's wait until the plaintiffs have presented their full case, and then it will be more ripe for summary judgement"? Thus giving RIAA more time to try to slip in the exhibits that they haven't been able to lay foundation for yet?
I have two different version of Blows Against The Empire. The CD version is different from the LP version. Perhaps the wrong master was selected for some tracks for the re-make. Are these "substantially" the same. Or they in fact different sound recordings.
I have two different version of Blows Against The Empire. The CD version is different from the LP version. Perhaps the wrong master was selected for some tracks for the re-make. Are these "substantially" the same. Or they in fact different sound recordings.
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