Monday, July 13, 2009

RIAA moves for partial summary judgment of dismissal of fair use defense in SONY v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, plaintiffs have moved for partial summary judgment dismissing defendant's fair use defense.

Plaintiffs' Memorandum of Law in support of motion for partial summary judgment dismissing fair use defense
Plaintiffs' statement of undisputed facts
Plaintiffs' appendix part 1



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

13 comments:

Anonymous said...

Did Plaintiffs really say that the purpose of file-sharing software is to share files? LOL.

According to the Plaintiffs, "Neither Defendant's downloading nor uploading of Plaintiffs' recordings on KaZaA in any way facilitated the free flow of ideas, information, or commerce." But that's just false. Where were they trying to go with it?

And I wanna know what is meant by "copyleftists". Has the RIAA decided to make up a new insult, devoid of real meaning, and then misapply it to people whose views they dislike? And then, to argue that those people who they dislike actually agree with them, anyway? Straw man.

Furthermore, do Plaintiffs truly intend to assert that Tenenbaum was using P2P for commercial purposes when the total value of the songs in question is less than $20?

Are Plaintiffs asserting that each of the songs are works? Is that what they registered with the Copyright Office?

As for the effect of P2P on record sales, it's laughable that Plaintiffs want summary judgment on an issue connected with it, since discovery on that issue hasn't even been completed. And where they could be stating their own estimated losses, they simply quote other people speculating about the effect of it.

XYZZY

Anonymous said...

The RIAA will take down the big four trying to prove a point. That point? Saving their way of thinking. Without regard for their customers. Without regard for how they pervert the law. And the politicians don't care....they get their renumerations from the industry to pass laws that cater to that corrupt industry. It is all about greed. Our laws are being twisted before our very eyes to bleed the citizen who can afford only the simple things in life. And the RIAA is taking advantage of that. You can get no lower. When will the common people see true justice?
Oldphart in Kansas

Anonymous said...

Dr Jacobson has been busy recently, the exhibit shows he was deposed in Atlantic v Andersen last month.
MS

Jadeic said...

Am i missing some special legal meaning for the words 'material facts'? When I read a paper entitled 'Summary of Material Facts...' then that is what I expect to get. This latest submission barely passes muster on any point of 'fact' presented.

I won't labour the point but...

Para 1 'detected an individual' - WRONG You can't detect an individual

Para 1 'using the ... file sharing program to distribute' - WRONG make available maybe but not distribute

Para 1 'this person was distributing ... to millions of other users' - WRONG see previous point

Para 2 'Exhibit C ... is a series of screen shots' - WRONG 'purports to be' would be closer to the mark . Without any audit trail you can make no greater claim.

Para 3 At last - some material facts.

Para 4 Er... even this is open to debate.

Para 5 If you see the word 'distributed' repeated often enough then you gloss over it but it still does not make it a material fact.

Para 6 'MediaSentry could have downloaded...' Ah, but unless they did it surely remains pure conjecture that complete copies of each track existed at the computer linked to the IP address and conjecture ain't material fact.

Para 6 'found' = 'allegedly found'

Para 6 'MediaSentry downloaded ...' - completely unverifiable.

Para 6 - 'distribution to MediaSentry' = downloading by MediaSentry' and nothing more.

I'm getting bored now.

Dave

Anonymous said...

Dave

(tongue placed firmly in cheek)

For assistance in interpreting and understanding Plaintiffs' motion, may I respectfully invite your attention to one Mr. H. Dumpty, a resident of Wonderland, who enjoys some fame as a philologist.

-Quiet Lurker

Alter_Fritz said...

have so far only read the comments and I like that part in xyzzy's one; "And I wanna know what is meant by "copyleftists". Has the RIAA decided to make up a new insult, devoid of real meaning, and then misapply it to people whose views they dislike? And then, to argue that those people who they dislike actually agree with them, anyway? Straw man.
"

sounds interesting!
if the RIAA-lawyers really have adopted the language of the peoples that seems to agree with their "conservative" view on copyrightlaws and that use the term "copyleftists" for the people that think that the events in the last decade aren't what copyrightlaw was initially proposed for "... for the betterment of society" and not for the enrichment of middlemen, then I hope the RIAA-lawyers are too innovative enough to adopt "our" language too and I happily look forward to the first instance when Tim or Eve themself refers to their clients as the "MAFIAA" and to Holme Roberts & Owen as the MAFIAA-Lawyers. ;-)

The Common Man Speaking said...

@XYZZY

Copyleft is a term coming into common usage for a movement wishing to provide an alternative to all or nothing restrictive copyrights and what they see as the overreaching problems now being created by them. You can read more about it here .

@Jadeic

Thank you for pointing out the absurdities of the RIAA's Undenyable Truths. You have saved this man that effort. Unfortunately judges don't seem capable of leaving their chambers long enough to realize what a bag of lies the RIAA has presented them with.

Lastly, the RIAA seems to fear a Fair Use defense like the plague and are doing everything they can to kill it ahead of time rather than actually allow it to be decided where it should be decided -- in the courtroom.

Anonymous said...

Their commercial use section seems pretty weak. Nonetheless, Tenenbaum has, I think, a tough road ahead of him to push the fair use defense to trial, given the Napster and BMG v Gonzales cases.

-fj

Jadeic said...

Musing more on the use of 'distributed' in the Plaintiff's paperwork, it would be interesting, though probably not possible, to bar the word's use in this context if only to see what further language mutation (sorry - synonym) they can press into use.

Dave

Anonymous said...

jadeic,

I know what "copyleft" means, it's just that I don't really understand what "copyleftists" are. If copyleftists are merely people that endorse copyleft license schemes, then that has nothing to do with this case, at all.

In that case, as before, I think the term is being used as a straw man ... albeit an ineffective one.

XYZZY

Anonymous said...

Sorry, I meant to reply to TCMS. Otherwise, contents the same.

XYZZY

Ray Beckerman said...

My recollection is that "copyleft" was a term coined by Richard Stallman and the free software movement wherein the developers and creators of software, although copyrighting their work, publicly licensed it in a way that minimized -- rather than maximized -- their interference with other peoples' ability to freely use the software.

StephenH said...

I cannot beleive that RIAA made the claim in this motion for partial summary judgment that he is a "commercial user". I think that this will be hard to prove without him actually "selling" anything or proving he has a business license.

I personally hope that the judge allows the fair use defense to be used.