Recording Industry vs The People: RIAA moves for partial summary judgment of dismissal of fair use defense in SONY v. Tenenbaum

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; July 14, 2009 at 12:59:00 AM EDT
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; July 14, 2009 at 4:19:00 AM EDT
Anonymous said...: Dr Jacobson has been busy recently, the exhibit shows he was deposed in Atlantic v Andersen last month.
MS; July 14, 2009 at 9:21:00 AM EDT
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; July 14, 2009 at 11:01:00 AM EDT
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; July 14, 2009 at 12:45:00 PM EDT
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. ;-); July 14, 2009 at 2:05:00 PM EDT
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.; July 14, 2009 at 2:16:00 PM EDT
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; July 14, 2009 at 2:55:00 PM EDT
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; July 14, 2009 at 4:31:00 PM EDT
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; July 14, 2009 at 6:05:00 PM EDT
Anonymous said...: Sorry, I meant to reply to TCMS. Otherwise, contents the same.

XYZZY; July 14, 2009 at 6:06:00 PM EDT
raybeckerman 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.; July 14, 2009 at 6:41:00 PM EDT
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.; July 15, 2009 at 3:02:00 AM 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