Recording Industry vs The People

Just read this report that Seeqpod has filed for Chapter 11 bankruptcy protection:

"Troubled SeeqPod Files For Bankruptcy Protection" (TechCrunch)

So much for Capitol Records v. Seeqpod




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 @ 3/31/2009 02:32:00 PM 6 Comments Links to this post

Just learned that Richard Stallman will be giving a talk tonight at Cardozo Law School, in Manhattan, at 6:00 PM.

"Richard Stallman on Copyright" (p2pnet.net)



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 @ 3/31/2009 10:11:00 AM 0 Comments Links to this post

In Arista Records v. Does 1-16, the case targeting 16 students at the State University of New York in Albany, "Doe Number 3" has filed his reply memorandum, in further support of his or her motion for a stay pending appeal, responding to the RIAA's opposition memorandum, in the United States Court of Appeals for the Second Circuit.

The Appeals Court has stayed the lower court's order and the subpoena pending the determination of the motion before it.

No argument date has been set for the motion.

The defendant's appeal brief is due May 6th.

The memorandum argues:

The main shortcoming of appellees’ papers is that they do not address the concerns of an appellate court, which are not the same as those of the district courts which have been inundated with these file-sharing lawsuits. This case raises many matters of first impression at the appellate level in general, and in this Court in particular. The district court precedents are not controlling, and there are many well-reasoned cases whose holdings directly contradict those cited by the appellees.

The fact remains that of these numerous ex parte (and litigated) applications, there is little appellate guidance (and apparently none from this Court) as to how this unprecedented flood of copyright litigation should be handled by the district courts. In trying to interpret statutes enacted in the pre-internet age, district courts are essentially improvising in many respects. Given the technical issues and the significant imbalance in the resources between the RIAA and these individual defendants, there needs to be such guidance.

The tensions and conflicts between copyright law and the inevitable and socially beneficial advancement of computer technology and the internet raise difficult problems of law and public policy. But the proper place for the resolution of these conflicts is Congress, where the interested parties can present their arguments, not ex parte proceedings and default judgments in the federal district courts. Suing thousands of people who seldom have lawyers or the ability to defend themselves, and extorting settlements, is not the way to resolve it either, and it is seriously detrimental to the sound development of copyright law.

Moreover, the methods and technology used by the RIAA are highly questionable. Recently, some defendants have retained their own expert witness to challenge the RIAA’s expert, and that witness’s findings point out serious flaws in the process. [footnote] See the report of Professor Yongdae Kim of the Department of Computer Science of the University of Minnesota, submitted in the Thomas case, available at http://recordingindustryvspeople.
blogspot.com/2009_03_01_archive.html#1082514775121526971 (accessed March 29, 2009)[end of footnote] Moreover, even apart from battles of experts, when a technology is so flawed that it results in suits against homeless and dead people, or people without computers, or even a takedown notice directed to a laser printer, something is seriously wrong. The RIAA has frequently sued admittedly innocent persons and is quite cavalier about the burden they impose on the legal process and the federal judiciary, and the effects of such frivolous suits on their victims. Under such circumstances, a blanket rule automatically allowing the invasion of First Amendment rights in these RIAA cases would be seriously detrimental to the rights of Doe 3 and to the public interest. All of these issues justify the granting of a stay so that they can be thoroughly presented to this Court.

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posted by Ray Beckerman @ 3/30/2009 08:07:00 PM 4 Comments Links to this post

Two veteran litigators have joined the defendant's legal team in SONY BMG Music Entertainment v. Tenenbaum.

They are Matthew Kamholtz and Matthew Feinberg of the Boston firm, Feinberg & Kamholtz.

Notice of appearance of Matthew Feinberg
Notice of appearance of Matthew Kamholtz



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 @ 3/30/2009 06:38:00 PM 4 Comments Links to this post

According to a report I just read in Mashable, Pirate Bay is coming to Facebook. Writer Ben Parr says that The Pirate Bay site now includes links under torrents to 'Share on Facebook'. Once posted to a profile, the Facebook member's friends can click the link on Facebook to begin the download right away, provided he or she already has a torrenting client installed. I just hope people do not use this feature to download copyrighted materials which are not authorized to be downloaded, or at least not materials copyrighted to litigation-happy RIAA Big 4 record labels. No doubt, if their song files were downloaded through this method, the record companies would sit back for awhile, derive profit from the promotional excitement generated for their dying industry, and then -- armed with Facebook's data -- sue the pants off all the hapless Facebook users who fell for it.

Commentary & discussion:

Slashdot
p2pnet.net
Punto Informatico (Italian)
p2pnet.net
y-net (Hebrew)




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 @ 3/29/2009 03:54:00 PM 8 Comments Links to this post

Our friend Jon Newton at p2pnet.net has written an interesting story recounting some of the history of the RIAA's vicious misguided persecution of Patti Santangelo and her family:

"You and I against the RIAA"



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 @ 3/29/2009 12:28:00 AM 1 Comments Links to this post

Thought I would share with my readers the wise and prophetic testimony of music legend Roger McGuinn of The Byrds, in the statement he was called upon to make to the Senate Judiciary Committee on July 11, 2000:

Roger McGuinn
Songwriter\Musician
Formerly with The Byrds
on
“The Future of Digital Music: Is There an Upside to Downloading?”
before the
U.S. Senate Judiciary Committee
July 11, 2000

Hello, my name is Roger McGuinn. My experience in the music business
began in 1960 with my recording of “Tonight In Person” on RCA Records.
I played guitar and banjo for the folk group the “Limeliters.” I
subsequently recorded two albums with the folk group the “Chad
Mitchell Trio.” I toured and recorded with Bobby Darin and was the
musical director of Judy Collins’ third album. In each of those
situations I was not a royalty artist, but a musician for hire.

My first position as a royalty artist came in 1964 when I signed a
recording contract with Columbia Records as the leader of the
folk-rock band the “Byrds.” During my tenure with the Byrds I recorded
over fifteen albums. In most cases a modest advance against royalties
was all the money I received for my participation in these recording
projects..................In 1994 I began making recordings of traditional folk songs that I’d learned as a young folk singer. I was concerned that these wonderful songs would be lost. The commercial music business hasn’t promoted
traditional music for many years. These recording were all available for free download on my website http://www.mcguinn.com on the Internet.

In 1998 an employee of MP3.com heard the folk recordings that I’d made
available at http://www.mcguinn.com and invited me to place them on
MP3.com http://www.mp3.com. They offered an unheard of, non-exclusive
recording contract with a royalty rate of 50% of the gross sales. I
was delighted by this youthful and uncommonly fair approach to the
recording industry. MP3.com not only allowed me to place these songs
on their server, but also offered to make CDs of these songs for sale.
They absorbed all the packaging and distribution costs. Not only is
MP3.com an on-line record distributor, it is also becoming the new
radio of the 21st century!

So far I have made thousands of dollars from the sale of these folk
recordings on MP3.com, and I feel privileged to be able to use MP3s
and the Internet as a vehicle for my artistic expression. MP3.com has
offered me more artistic freedom than any of my previous relationships
with mainstream recording companies. I think this avenue of digital
music delivery is of great value to young artists, because it’s so
difficult for bands to acquire a recording contract.

Commentary & discussion:

Topix
Broken Record





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posted by Ray Beckerman @ 3/27/2009 03:37:00 PM 1 Comments Links to this post

In Elektra Entertainment Group v. Santangelo II, the case against two of Patti Santangelo's children, the Court has scheduled an April 7th settlement conference.

Order scheduling settlement conference

Commentary & discussion:

p2pnet.net




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posted by Ray Beckerman @ 3/27/2009 01:32:00 PM 0 Comments Links to this post

Well now it's official.

I learned it from "ComcastBonnie" on Twitter.

Comcast is NOT going along with the RIAA's proposed new '3 strikes and you're out', ISP-as-RIAA-enforcement-cop policy.

It is continuing to follow the same policy it has followed for years: if the RIAA sends it a 'notice of alleged infringement', it will forward the notice to its customers. No more and no less.

Official Comcast announcement

Commentary & discussion:

Chron.com
ecrans (French)
FutureProducers.com





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posted by Ray Beckerman @ 3/26/2009 12:46:00 PM 3 Comments Links to this post

I'm so excited. I've made contact with "ComcastBonnie", one of Comcast's official representatives on Twitter.

In a few minutes she's going to be giving us an official statement of Comcast's position vis-a-vis RIAA.



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posted by Ray Beckerman @ 3/26/2009 12:21:00 PM 6 Comments Links to this post

Came across this interesting general article on the website of the Journal of the DuPage County Bar Association:

The RIAA Versus the People: A File-Sharing Witch Hunt

By Heather Neaveill

For the past five years, the Recording Industry Association of America (RIAA) has unleashed a barrage of “John Doe” lawsuits aiming at individuals who illegally file-share or download music and infringe on the recording industry’s copyrighted works. But is their tactic fair? Many defendants say ‘no.’ The RIAA’s targets are not commercial entities but private, ordinary individuals. Even some federal judges have grown tired of the RIAA’s modus operandi. The Hon. Nancy Gertner addressed counsel in open court that “counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers, to fully understand that, more than just how we serve them, but just to understand that the formalities of this are basically bankrupting people and it’s terribly critical that you stop it.” Now, this is not to condone illegal file-sharing, but the question does turn on whether there should still be an element of fairness when fighting illegal activity.

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posted by Ray Beckerman @ 3/26/2009 12:10:00 PM 0 Comments Links to this post

According to this new report in p2pnet, earlier reports that AT&T agreed to act as an RIAA enforcer are incorrect, and both AT&T have Comcast have refused to do so.

[Ed. note. What's the truth? Don't ask me. If you find out, let me know. Meanwhile we should try to let our ISP's know how we feel about them becoming enforcement cops for 4 of the most dastardly corporations on the face of the earth. -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

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posted by Ray Beckerman @ 3/26/2009 09:44:00 AM 1 Comments Links to this post

In SONY BMG Music Entertainment v. Cloud, a Philadelphia case, the Obama Justice Department has filed a similar brief defending the constitutionality of the RIAA's statutory damages theory that it is entitled to recover from $750 to $150,000 for a single MP3 file.

This brief appears to have been written by a different attorney than the attorney in SONY BMG Music Entertainment v. Tenenbaum.

Like the Tenenbaum brief, this brief likewise ignores Parker v. Time Warner, Napster, UMG v. Lindor, and Atlantic v. Brennan, and the Georgetown and University of Texas Law Review Articles, all cited in the amicus curiae brief of the Free Software Foundation in Tenenbaum

US Department of Justice brief arguing constitutionality of RIAA's statutory damages theory

Commentary & discussion:

p2pnet.net
Copyrights and Campaigns
Intellectual Property Watch





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 @ 3/25/2009 04:05:00 PM 7 Comments Links to this post

According to this report from TechCrunch, EMI has dropped out of the RIAA lawsuit against Project Playlist and entered into a license agreement instead, turning Project Playlist into a customer, instead of a defendant.

[Ed. note. Legally speaking this appears to be a case of 'temporary sanity'. Congratulations, EMI. -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

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posted by Ray Beckerman @ 3/25/2009 12:55:00 PM 3 Comments Links to this post

The White House has set up a link for questions to ask the President. People can vote on which questions they link.

In searching the questions just now, I came across this one:

Why do you think it's a good idea to side with the RIAA and back a 150k fine per illegal download? What possible business could any kind of government (much less the president) have to do with downloading music?

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posted by Ray Beckerman @ 3/25/2009 12:43:00 PM 8 Comments Links to this post

According to this report in p2pnet.net, Susan Crawford, the founder of One Web Day and a supporter of net neutrality, is going to be appointed to a high position in the Obama administration.



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 @ 3/25/2009 12:16:00 PM 1 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the Court granted the motion of the Free Software Foundation to file an amicus curiae brief on the constitutionality of the RIAA's statutory damages theory, as well as the motion of the Department of Justice to intervene and to file an oversized brief:

Electronic ORDER entered granting [790] Motion for Leave to File Amicus Brief by Free Software Foundation. Electronic ORDER entered granting [792] Motion to Intervene; granting [792] Motion for Leave to File Excess Pages

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posted by Ray Beckerman @ 3/25/2009 10:26:00 AM 0 Comments Links to this post

According to a report in p2pnet.net, AT&T has become the first ISP to agree to act as enforcer for the RIAA.

[Ed. note. What can I say except (a) those of you who are using AT&T, please stop, and (b) those of you who are not using AT&T: good. And if you want to write them and let them know how you feel, all the better. -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

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posted by Ray Beckerman @ 3/25/2009 10:23:00 AM 8 Comments Links to this post

In UMG Recordings v. Lanzoni, a Houston, Texas, case, the RIAA has voluntarily dismissed its case with prejudice, after being served with a Rule 11 motion.

Defendant never filed the Rule 11 motion with the Court, because the RIAA withdrew its case prior to the expiration of the 21-day "safe harbor" period.

Among other things, the Rule 11 motion cited and discussed the RIAA's tactics in Capitol Records v. Foster and Atlantic Recording v. Andersen, arguing that the attorneys fee awards in those cases have failed to achieve the desired deterrent effect, and that the more forceful remedy of Rule 11 sanctions is now needed.

The defendant's objections to the RIAA's discovery notices invoked the words of Judge Gertner in the June 17, 2008, Conference Transcript, in SONY BMG Music Entertainment v. Tenenbaum, where she stated to the RIAA lawyers: "the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...."

Defendant's document request
Defendant's interrogatories
Defendant's request for admissions
Defendant's expert witness report
Defendant's response to plaintiffs' interrogatories
Defendant's response to plaintiffs' document request
Defendant's Rule 11 motion
Stipulation of dismissal with prejudice

Commentary & discussion:

p2pnet.net
Slashdot
Metal Rules

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posted by Ray Beckerman @ 3/25/2009 09:12:00 AM 19 Comments Links to this post

In Arista Records v. Does 1-16, targeting students at the State University of New York in Albany, a case in which an appeal has been filed and the US Court of Appeals for the Second Circuit has issued an interim stay of the subpoena directed to SUNY Albany, the RIAA has filed papers opposing defendant's motion for a stay pending appeal.

Plaintiffs' memorandum in opposition to motion for stay pending appeal



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posted by Ray Beckerman @ 3/24/2009 07:22:00 PM 5 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, Judge Gertner has denied the defendant's "reconsideration" motion on the ground that defendant had initially prevailed, hence had no reason to move for reconsideration.

The Court also noted that the appellate court's oral argument will be taped, and an audiocast made available online.

The Court's order reads as follows:

Judge Nancy Gertner: Electronic ORDER entered. The Defendant's Motion for Extension of Time [786] and Motion for Reconsideration [787] are DENIED. The Plaintiffs have declined to move for reconsideration of the Court's January 14, 2009 Order, preferring to rely on the pending proceedings in the First Circuit. While the Defendant has moved to reconsider, his motion is late and without basis as he previously prevailed on the narrowcast issue in this Court. The First Circuit has set a date for oral argument, currently scheduled for April 8, 2009, at 9:00 a.m., and has solicited amicus briefs. Significantly, given the nature of this appeal -- whether the district court may "narrowcast" a legal argument -- the First Circuit has indicated that the argument before it will be audiotaped and posted online after the fact. See First Circuit Calendaring Notice, March 10, 2009, Case No. 09-1090. There is no equivalent in the district court, hence the litigation in this case.

Commentary & discussion:

Copyrights and Campaigns





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posted by Ray Beckerman @ 3/24/2009 11:22:00 AM 3 Comments Links to this post

The RIAA has filed its opposition brief in SONY BMG Music Entertainment v. Tenenbaum.

As in the case of the Government brief, it ignored the authorities cited in the Free Software Foundation's amicus curiae brief.

Plaintiffs' Memorandum in Opposition

Commentary & discussion:

Copyrights and Campaigns






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posted by Ray Beckerman @ 3/24/2009 09:39:00 AM 8 Comments Links to this post

New Zealand's proposed copyright bill, controversial Section 92A of the Copyright Amendment (New Technologies) Act, has been scrapped, it was announced by Prime Minister John Key. The proposed law, which would have turned ISP's into copyright enforcers for Big Music and the film industry, will now be rewritten. Commerce and justice minister Simon Power will now meet with officials and rewrite Section 92A (S92) of the Act from the ground up. 'Section 92a is not going to come into force as originally written. We have now asked the minister of commerce to start work on a replacement section,' the prime minister said. No timeframe has been set for amending S92. The controversial measure had been met with a firestorm of controversy.

Commentary & discussion:

p2pnet.net (3/25/09)







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posted by Ray Beckerman @ 3/23/2009 09:58:00 AM 4 Comments Links to this post

In its first opportunity to demonstrate its position on the constitutionality of the Copyright Act's statutory damages provisions as applied to mp3 files having a market value of 99 cents or less, the Obama Justice Department -- staffed by RIAA lawyers in its 2nd and 3rd highest positions -- has filed a motion for intervention and brief in SONY BMG Music Entertainment v. Tenenbaum which attempts to support the RIAA's statutory damages theory.

The brief:

1. relied upon St. Louis, IS & M Ry Co v. Williams, 251 US 63 (1919) a 1919 United States Supreme Court decision which upheld, as against due process attack, a statute awarding statutory damages against a large railroad corporation which were 116 times the actual damages sustained, in cases involving the rail carrier's overcharging of its customers, on the ground that under the circumstances the award was not so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable;

2. relied upon the decision of the US Court of Appeals for the 6th Circuit in Zomba v. Panorama, 491 F.3d 574 (6th Cir. 2007), which held that until such time as the US Supreme Court applies the State Farm/Gore test, rather than the Williams test, to statutory damages, the less stringent Williams standard would be applied, and upheld a statutory damages award equal to 44 times the actual damages, in a case of wilful copyright infringement by a karaoke disc distributor, since 44 times actual damages was less onerous than the 116:1 multiple upheld by the Williams court;

3. conceded that statutory damages are subject to due process review for excessiveness, but argued that the less demanding Williams standard, rather than the higher State Farm/Gore standard, should be applied;

4. attempted to refute the arguments made by the defendant in his brief; and

5. ignored all of the authorities and all of the arguments cited by the Free Software Foundation in its amicus curiae brief.

Department of Justice Motion to Intervene
Department of Justice Memorandum of Law

[Ed. note. (1) Odd, don't you think, that the Government ignored the authorities cited in FSF's amicus curiae brief? Maybe they thought Judge Gertner wouldn't be able to find them, so they'd be better off not mentioning them. (2) Sad that the Obama administration, which purports to be for 'the little guy', supports statutory damages of from 2,100 to 425,000 the actual damages, imposed against 'the little guy', to be awarded to big corporations. (3) Fortunately the courts will probably not be as cooperative, since the Government's brief is noticeably weak and fails to stand up to scrutiny; if that's the best argument, and those are the best authorities, the RIAA's friends can come up with, they're dead in the water on the Due Process issue. -R.B.]

Commentary & discussion:

p2pnet.net
Slashdot
The Daily Swarm
Groklaw
Copyrights and Campaigns
Techmeme
The P.R.I.S.M.
Boston University Free Culture
The Big Bad Wolf
p2pnet.net
Tech Blog
Fark
TwentyFourBit
Reason.com
Digg
Twitter
Press Play Show
CNet News
TechDirt
The Inquisitr
p2pnet.net
Ground Report
reddit
BBS Clutch Fans
vnboards.ign.com
Hamish MacEwan
Legal Blog Watch
Blown to Bits
Digital Music News
SL Universe
Heise Online (German)
[Hard] Forum
LiveJournal
Privacy Digest
Ars Technica
Free Republic
Music Industry Report
Our DJ Talk
doom9.net
Chronicle of Higher Education
Exclusive Rights
Public Knowledge
Karaoke Scene
Punto Informatico (Italian)
e-Commerce and Tech Law (3/24)
e-Commerce and Tech Law (3/27)
modernsextrash.com
PressPlayShow.com
linda-shadow.livejournal.com

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posted by Ray Beckerman @ 3/22/2009 12:40:00 PM 23 Comments Links to this post

Any day now we will be finding out whether the Obama Administration, which pledged to work for the people, and to keep officials from working on matters affecting the industries they represented in private life, will be intervening to help the RIAA defend its position that it's okay to assess statutory damages of from $750 to $150,000 for infringement of a single mp3 file.

This will be the litmus test of whether, as many fear, the Obama/Biden administration will be tools of the 'Big 4' Record Companies.

The Obama Department of Justice has former RIAA lawyers in its 2nd and 3rd highest positions. Under the rules, they, and any of their compatriots whom they may have brought with them, should be precluded from having anything to do with the Justice Department's decisions as to (a) whether or not to intervene and (b) if they do intervene, what position they will take.

In SONY BMG Music Entertainment v. Cloud in Pennsylvania, and SONY BMG Music Entertainment v. Tenenbaum in Massachusetts, we will probably find out any day now.

In Tenenbaum the Free Software Foundation filed its amicus curiae brief yesterday, reminding the Court of the authorities which say that statutory damages are subject to the same Due Process test as punitive damages.

[Ed. note. If the Justice Department lawyers have the temerity to say to the Court that statutory damages of from 2,100 to 425,000 times the actual damages sustained pass constitutional muster, we can pretty well count the Obama Justice Department out as anything other than a lackey for the RIAA in this struggle. -R.B.]

Commentary & discussion:

p2pnet.net





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 @ 3/21/2009 01:14:00 PM 9 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, in Boston, the Free Software Foundation has moved for permission to file an amicus curiae brief defending the defendant's due process defense to the RIAA's claim for statutory damages.

The same issue was litigated in UMG Recordings v. Lindor, where defendant argued that even the RIAA's minimum statutory damages theory, seeking $750 per song file, was unconstitutional. The RIAA challenged the legal sufficiency of that defense, and the Court rejected the RIAA's argument, holding that "[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....."

See law review article: "Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement" By J. Cam Barker, 83 Texas L. Rev. 525 (2004)[Copyright Texas Law Review Association 2004][Reprinted with permission]*

Motion for leave to file amicus curiae brief
Proposed amicus curiae brief

Commentary & discussion:

Slashdot
p2pnet.net
Copyrights and Campaigns
Groklaw
Legal Blog Watch

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posted by Ray Beckerman @ 3/20/2009 03:58:00 PM 7 Comments Links to this post

I just learned that it's not so "simple" as I thought it was. Mike Masnick of TechDirt, the guy who exposed this scam, was kind enough to explain to me that "Choruss" isn't something students will be able to opt out of. Mike explains : "Ray, one of the problems with Choruss is that *users* won't have a choice. That's because it's designed for universities and ISPs to sign up *on behalf* of all of their users. So, individuals won't even get the chance to say no -- which is part of the reason why there needs to be much more focus on what it's trying to do." So I've revised what I've originally written:

There's a big controversy going on about some plan arch RIAA bad guy Warner Bros. has, which it named "Choruss", to peddle its music to college campuses. Apparently its sales pitch doesn't conform to the actual terms. See, e.g. p2pnet.net story.

Regardless of what the reality is -- and experience teaches us that what an RIAA member says is usually false -- the answer is simple: those of us who are knowledgeable about what the RIAA does to people should urge colleges, universities, and ISP's to stay far away from this product carrying the RIAA taint. And we should ask our friends to do so as well.

So if your college, university, or ISP is being offered something called "Choruss", please -- for the sake of all those who have suffered at the hands of Warner Bros. and its 3 coconspirators -- urge them to say "No, thank you."

We do not want our colleges, universities, and ISP's to become business partners of some of the most unethical corporations on the planet.

[Ed. note. It's also permissible to urge them to say "No, thank you, you SOB's." -R.B.]

Commentary & discussion:

Slashdot
p2pnet.net







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 @ 3/19/2009 10:40:00 PM 9 Comments Links to this post

A very helpful article, in which Ariel Hyatt interviews Cory Denis on how indie musicians can make the best use of social media to reach their fans:

Social Media & Online Marketing For Musicians

Posted: Thursday, 19 March 2009

In this issue I digress from my usual tips and give you an interview with a true tastemaker.

Cory Denis is a woman I admire deeply. She and I have an interesting history. She worked at What Are Records? the label I started out at. But she arrived after I had already left, so we never actually had the pleasure of working together during the time. Cory is nothing short of a genius at marketing bands and artists.

She is brilliant because she thinks about both sides of the fence from the both the artists and the fans perspective.

I’m thrilled that she was willing to be interviewed for this piece. Enjoy her responses.

1. Why is it important that artists participate in social media?

At the very least, learning how to participate in social media will give artists a chance to take advantage of new online tools, which may actually enhance their current projects. Singles, videos and tourdates can be released via new outlets, fans (new and old) will have a new method of communication with artists, and artists will have a new set of tools by which to market their craft. In the face of both an unstable music economy and the evolution of the new music economy

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posted by Ray Beckerman @ 3/19/2009 02:20:00 PM 0 Comments Links to this post

Good article in "Swan Fungus" about Billy Corgan of the Smashing Pumpkins, the RIAA's dancing monkey:

The Great Pumpkin Goes To Congress

Hey, I just remembered something I learned in college! Wild, right?

My 20th Century Media course taught me all about “synergy.” When corporations try to consolidate their power in a given industry by merging or acquiring other corporations, they hope to benefit financially by controlling the 13 power roles that make up a given form of mass media. For example, when Sumner Redstone and Viacom owned Blockbuster Inc., Viacom controlled the producer and distributor/exhibitor roles, and the consolidation of power benefited the company financially because stores could stock more Viacom-related films (Paramount Pictures, DreamWorks, MTV Films, et al.). It behooves any major corporation to try to achieve synergy. Of course, it also behooves intelligent members of the public to fight against synergy. Generally speaking, synergy is horrible for consumers because it leads to market saturation and less choices. There are absolutely no benefits for consumers when it comes to corporate synergy.

…Which is why I am completely unsurprised to read that Billy Corgan — the frowning prince — has sent a letter to several members of Congress saying that the potential Ticketmaster / Live Nation merger is a good idea.

Commentary & discussion:

p2pnet.net





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 @ 3/17/2009 10:51:00 PM 5 Comments Links to this post

In Capitol Records v. MP3Tunes.com, the New York firm Pryor Cashman has been substituted as attorneys for the 'publishing' plaintiffs, while Jenner & Block remain counsel for the 'recording' company plaintiffs.


Stipulation of Substitution



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 @ 3/17/2009 04:26:00 PM 0 Comments Links to this post

The problem with the web hosting company has been resolved.

However, a new problem seems to have arisen with documents hosted at http://ilrweb.com, which will presumably be resolved shortly.

If you need a document with an "http://ilrweb....." URL, and can't get it, let me know and I'll try to get the document online for you.

Sorry for the inconvenience.

-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

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posted by Ray Beckerman @ 3/17/2009 04:16:00 PM 0 Comments Links to this post

In SONY BMG Music Entertainment v. Simms, an Atlanta, Georgia, case being defended by a pro se litigant, the RIAA has filed papers opposing the defendant's motion for leave to amend her answer.

Plaintiffs' opposition



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posted by Ray Beckerman @ 3/17/2009 04:08:00 PM 9 Comments Links to this post

In SONY BMG Music v. Tenenbaum, Prof. Nesson has filed a 'notice' containing an apology.

'Notice' of 'apology'

[Ed. note: To you law students and young lawyers out there; please don't think you can learn anything from this case. Just ignore everything you are seeing from both sides. I have seen more bizarre filings from both sides' lawyers than I would imagine possible. Please don't ask me where in the federal rules there is a provision for a notice of apology. Last time I looked, there isn't any such provision. Please do not practice law 'from the seat of your pants' the way the lawyers for both sides are doing in this case; that is a sure path to failure.

I'm tempted to stop coverage of this madness, except for its entertainment value. I personally find it more upsetting than entertaining, though, due to the harm this could be causing to other defendants all across the country. In any event, in the interest of 'reporting the news', however sickening it may be to me personally, I will continue.

I can only hope that more good than bad comes out of this nonsense, but I am not in the least sanguine about it. We have a judge who has done a lot of harm to the Massachusetts victims of the RIAA litigation onslaught, and who is of the view that the substantive law overwhelmingly favors the RIAA, despite the ex parte star chamber processes, insufficient pleadings, faked legal theories, hearsay evidence, illegally procured evidence, and most of all insufficient evidence, upon which she has granted ex parte orders, granted judgments, and helped to force unconscionable settlements. She has signed hundreds and hundreds of orders and judgments and other rulings in favor of the RIAA; it took her 4 1/2 years to make even a single, slight ruling, in favor of a defendant. To go into that forum, without adequate preparation, is disaster, not only for the defendant but for all the other people having to defend RIAA cases all across the country, because any ruling adverse to Tenenbaum will be cited by the RIAA ad nauseum.

Meanwhile, as the substance of the apology, I do not even know what Prof. Nesson is talking about. Mr. Oppenheim has frequently presented himself as "the client", the "client representative", and as a "principal" of the client. There was nothing out of line about seeking his deposition as one of the corporate representatives. What was out of line was Prof. Nesson's failure to include all of the evidence of Mr. Oppenheim's having made such representations to the courts in other cases, to the effect that he was not the lawyer, he was a principal of the client record companies. I.e. Prof. Nesson should be apologizing to his client, and to all the other defendants whose cases he might be hurting. -R.B.]

Commentary & discussion:

p2pnet.net
Ars Technica
Copyrights and Campaigns





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 @ 3/17/2009 09:38:00 AM 11 Comments Links to this post

Thanks to Mind Booster Noori for bringing this to my attention.

Interesting report in Billboard that Nellie Furtado, a singer signed to frequent RIAA plaintiff Interscope Records, has gone into competition with her label, launching her own "indie" record label:

Nelly Furtado Launches Indie Label

March 16, 2009 06:00 AM ET
Cortney Harding, N.Y.

Pop star Nelly Furtado is not the first major-label musician to start her own label, but she is one of the few to do it with an indie. Furtado is launching Nelstar in cooperation with the Canadian independent label group Last Gang Labels.

The Toronto-based electro-dance band Fritz Helder & the Phantoms is the first act signed to Nelstar and will release its debut album July 7.

"Nelly just wasn't that interested in doing a OneRepublic/Timbaland type of thing," says Chris Taylor, president of Last Gang and Furtado's longtime attorney. "She's an independent spirit, and she wants to make sure we build the band at the right pace. It's also very important to launch a band with indie branding behind them and be able to build them brick by brick."

Taylor points out that Furtado has close ties to the band, noting that two members are her backup dancers.

Furtado says she never considered introducing the Nelstar imprint via her label, Interscope.....

"....When you are a new band and you sign to a major, you get thrown to the fire."

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posted by Ray Beckerman @ 3/16/2009 08:09:00 AM 0 Comments Links to this post

According to a report in "Business Day" of Stuff.co.nz, Google is opposed to the proposed copyright legislation regulating ISP's in New Zealand:

Google opposes new copyright law
By TOM PULLAR-STRECKER - The Dominion Post

Google has voiced its opposition to a controversial law change that would force internet service providers to cut off "repeat copyright infringers, in appropriate circumstances".

In a submission to the Telecommunications Carriers Forum, an industry body, Google said section 92a of the Copyright Act would undermine the "incredible social and economic benefits" of the internet and was disproportionate to the problem it aimed to address.

TelstraClear appeared to deliver a death blow to the law change last week when it said it would not support the development of a code being drafted by the forum that attempted to set out how telcos could interpret their obligations under the act.

Commentary & discussion:

p2pnet.net





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posted by Ray Beckerman @ 3/15/2009 07:00:00 PM 1 Comments Links to this post

In SONY BMG Music v. Tenenbaum, the RIAA's supplemental brief to the First Circuit Court of Appeals represents that the RIAA lawyers "could not confirm" whether the 1st Circuit Judicial Council had acted or not, and therefore did not address the issue at all in the lower court.

RIAA supplemental brief

[Ed. note: This would seem to be reason enough in and of itself to deny the RIAA's petition. The fact that they had not even told Judge Gertner of the existence of the resolution negates any possibility that Judge Gertner was acting outside of her discretion in failing to enforce it. And the fact that the RIAA lawyers couldn't "confirm" the resolution pretty well "confirms" Tenenbaum's argument that the legally prerequisite public notice had not been given, thus invalidating the "resolution". These damning admissions render even more bizarre the RIAA lawyers' refusal to present to Judge Gertner the information and arguments they should have made in the first place, had they been acting competently, and were the resolution lawfully enacted. -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

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posted by Ray Beckerman @ 3/14/2009 03:13:00 PM 4 Comments Links to this post

In the criminal case against a Kevin Cogill, for uploading unreleased Guns 'n Roses Tracks, the RIAA has submitted a "victim impact statement" in support of a request for restitution and an order directing the victim to participate in a "public service announcement".

In a previous criminal case, US v. Dove, the rationale of the RIAA's "victim impact statement", and with it the RIAA's restitution request, were rejected by the Court.

US v. Kogill, victim impact statement

[Ed. note. How's that for "cruel and unusual punishment"? An order directing someone to do a public service announcement for the RIAA? -R.B.]

Commentary & discussion:

p2pnent.net








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posted by Ray Beckerman @ 3/14/2009 02:26:00 PM 8 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, after the plaintiffs failed to file a reconsideration motion, the defendant has asked for permission to file a reconsideration motion of his own.

Motion for late filing
Motion for reconsideration
Defendant's memorandum of law
Exhibit A
Exhibit C

Commentary & discussion:

Copyrights and Campaigns





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posted by Ray Beckerman @ 3/13/2009 04:10:00 PM 3 Comments Links to this post

In honor of the RIAA's supposed "cessation" of new litigations last August -- something which may come as a surprise to the hundreds and hundreds of people who have been sued since then, some this month -- I would like to take this opportunity to reprint our March 1, 2007, post.

The well known Sunday comic strip "Foxtrot" by Bill Amend featured as its subject in the March 4, 2007, edition, the RIAA's lawsuits against single moms, widows, grandmothers, dead people, and children.

.

This comic strip is reproduced here with the gracious permission of its creator, Mr. Bill Amend. We are deeply grateful to Mr. Amend for his permission, and for his concern over this important issue in our society.

For more back issues of FoxTrot, go here.

For the current issue of FoxTrot, go here.

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Commentary & discussion:

Journalista!

Keywords: art cartoon cartoonist digital copyright online 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

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posted by Ray Beckerman @ 3/13/2009 12:47:00 PM 4 Comments Links to this post

In SONY BMG Music v. Tenenbaum, the First Circuit's oral argument -- concerning whether an argument in the court below can be made available online -- will itself be available online, according to a March 10, 2009, order rescheduling the appeals court argument for April 8th at 9 A.M.

I.e. the argument, about whether to stream the lower court argument, will itself be streamed.

Additionally, the defendant Joel Tenenbaum has filed a supplemental brief arguing that the 1996 Judicial Council resolution does not bar the internet 'narrowcast' ordered by Judge Gertner.

First Circuit Notice of Argument
Defendant's Supplemental Brief

[Ed. note. I have been advised, by a friend of the blog, that the 1st Circuit's streamed "recording" will likely be audio only. I don't see why any different considerations would apply. -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

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posted by Ray Beckerman @ 3/13/2009 01:16:00 AM 2 Comments Links to this post

After letting the March 11th deadline for submission of its reconsideration motion, in SONY BMG Music Entertainment v. Tenenbaum, expire, the RIAA has filed a document it calls a "notice" stating that

In response to the District Court’s March 4, 2009, Order, Plaintiffs note that the District Court’s January 14, 2009, Order has been stayed by the First Circuit Court of Appeals and that any issues surrounding that Order are currently pending in the First Circuit. The First Circuit can resolve the broadcasting issue expeditiously without additional briefing or further appeals.

Commentary & discussion:

Slyck
Copyrights and Campaigns
MegaPlatinum
p2pnet.net
Ryan's Rock Show




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 @ 3/12/2009 04:41:00 PM 5 Comments Links to this post

Another good article by Jon Newton of p2pnet.net about the human equation, the toll the RIAA's litigations take on the lives of the people subjected to them:

Pay up! Dawnell Leadbetter tells RIAA. Again.

p2pnet news view RIAA | P2P:- Regular p2pnet readers will recognize the name Dawnell Leadbetter.

She’s the Seattle-area mother of two teenaged children who sued Comcast for disclosing her name and contact information.

She also features in the ‘We’re Not Taking Any More’ club, an early p2pnet story on mothers who’ve had the courage to stand up to Vivendi Universal, EMI, Warner Music and Sony Music RIAA thugs.

In the Comcast case, an RIAA ‘Settlement Support Center’ used information the RIAA, “obtained in a Philadelphia lawsuit over the illegal sharing of digital music files,” Lory Lybeck, the lawyer representing Leadbetter, said in Reclaim the Media.

“But no court authorized Comcast to release names and addresses of its customers, or notified his client that her information had been given to an outside party.”

Now, “In Interscope Records v Leadbetter, where the 9th Circuit Court of Appeals had affirmed the lower court’s denial of Ms Leadbetter’s motion for her attorneys fees, Ms Leadbetter has filed a petition for rehearing, arguing that the Court overlooked certain facts and legal precedents,” says Recording Industry vs The People.

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posted by Ray Beckerman @ 3/12/2009 10:43:00 AM 2 Comments Links to this post

From a review of the Court's docket, it appears that the RIAA has not filed the reconsideration motion which Judge Gertner suggested it make, concerning the videocasting of an oral argument, in SONY BMG Music Entertainment v. Tenenbaum.

[Ed. note. Don't ask me. I just report these things. -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

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posted by Ray Beckerman @ 3/12/2009 09:45:00 AM 5 Comments Links to this post

In Interscope Records v. Leadbetter, where the 9th Circuit Court of Appeals had affirmed the lower court's denial of Ms. Leadbetter's motion for her attorneys fees, Ms. Leadbetter has filed a petition for rehearing, arguing that the Court overlooked certain facts and legal precedents.

Petition for rehearing

Commentary & discussion:

p2pnet.net






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 @ 3/11/2009 07:04:00 PM 0 Comments Links to this post

In Fairey v. Associated Press, the "fair use" litigation commenced by artist Shepard Fairey involving portraits of Barack Obama, the Associated Press has filed its answer and counterclaims, accusing Fairey of copyright infringement and disputing his claim of "fair use".

Answer and counterclaims

[Ed. note. As faithful reader "Shane" points out, the photographer who actually took the picture does not agree that Associated Press owns the copyright in the photograph. -R.B.]

Commentary & discussion:

Excess Copyright
Lisa Borodkin Blog





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 @ 3/11/2009 01:22:00 PM 14 Comments Links to this post

Good article by Karl Bode in "Broadband" on DSLReports.com:

RIAA Just Can't Stop Suing
Because to stop existing cases just wouldn't be fair...
04:40PM Monday Mar 09 2009 by Karl Bode

The RIAA was criticized last week for continuing to sue P2P file traders, despite claims that they were turning the page on such heavy-handed tactics. While some might simply call this dumb, Ars Technica hunts for a more complicated answer, asking three sources why the RIAA is still in court and getting three answers....

Commentary & discussion:

p2pnet.net
Remixtures (Portugese)




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 @ 3/11/2009 08:05:00 AM 0 Comments Links to this post

In Arista Records v. Does 1-16, the case targeting students at the State University of New York in Albany, the United States Court of Appeals for the Second Circuit has granted an interim stay of the subpoena calling for the identity of student "John Doe #3".

This means that the subpoena is stayed during the pendency of John Doe's motion for stay pending appeal.

Plaintiffs are required to file their opposition papers, if any, by March 23rd.

March 10, 2009, order granting interim stay

Commentary & discussion:

Slashdot






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 @ 3/10/2009 01:45:00 PM 3 Comments Links to this post

In Capitol Records v. VideoEgg, it appears that the parties have reached a settlement, as a stipulation of dismissal with prejudice has been submitted.

Stipulation of Dismissal With Prejudice



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posted by Ray Beckerman @ 3/10/2009 11:55:00 AM 2 Comments Links to this post

As reported earlier, in Capitol Records v. VideoEgg, the motion by defendant HI5 to dismiss was denied, but its motion to transfer the case from New York to California was granted.

The original decision was recalled by the Court, and a new decision issued.

From my cursory examination of the new decision, the difference appears to be that it removes the directions about 'closing the case', from which I infer that the case will now be split into 2 cases, with the case against VideoEgg proceeding in New York, while the case against HI5 proceeds in California.

March 9, 2009, decision, denying HI5 motion to dismiss, granting HI5 motion to transfer



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 @ 3/10/2009 10:00:00 AM 0 Comments Links to this post

I am pleased to report that "Recording Industry vs. The People" has been selected for syndication by Newstex "Blogs on Demand" service.

Newstex is a leading aggregator of real-time content from new sources, blogs and videos to distributors who deliver that content to end-user customers.

Newstex distributors include Amazon Kindle, Lexis Nexis, The New York Times, Thomson Reuters, and many other important news sources.

Here is a link to our entry on Newstex.



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 @ 3/10/2009 08:49:00 AM 4 Comments Links to this post

In SONY BMG Music v. Tenenbaum, the defendant has filed a motion to dismiss the RIAA's claim for statutory damages, on the ground that it violates due process.

Memorandum of law in support of defendant's motion to dismiss statutory damages claim on constitutional grounds

Commentary & discussion:

Copyrights and Campaigns
Groklaw




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posted by Ray Beckerman @ 3/09/2009 06:23:00 PM 13 Comments Links to this post

In SONY BMG Music v. Tenenbaum, Judge Gertner issued an order denying defendant's motion to compel the deposition of Matthew Oppenheim, and suggesting that the motion was frivolous.

Order denying motion to compel deposition of Matthew Oppenheim

Commentary & discussion:

Excess Copyright
Copyrights and Campaigns
p2pnet.net
Popehat
Legal Blog Watch
Chronicle of Higher Education
Copyrights and Campaigns






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 @ 3/09/2009 05:29:00 PM 6 Comments Links to this post

In Arista Records v. Does 1-16, the case targeting students at the State University of New York in Albany, one of the students -- represented by Manhattan litigator Richard A. Altman -- has appealed to the US Court of Appeals from the Second Circuit from the District Judge's order denying the student's motion to sever, to vacate, and to quash, and directing SUNY Albany to divulge the student's identity.

The student has asked the appeals court for a stay of the subpoena pending appeal.

Declaration in support of motion for stay




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 @ 3/09/2009 04:48:00 PM 2 Comments Links to this post

In a Pittsburgh case targeting Carnegie Mellon Students which has previously been known as Fonovisa Records 1-9, in which the Court dismissed as to John Does 1-2 and 4-9 due to improper joinder, the RIAA has many months later amended its complaint to pursue "John Doe #3", a Carnegie Mellon student, in her own name.

The caption in the amended complaint reads LaFace Records v. Maddox.

From a review of the docket, it is not clear that the plaintiffs' filing of an amended complaint is timely.

The amended complaint is in the new form which doesn't mention MediaSentry at all, but falsely states that "Plaintiffs identified an individual".

Amended complaint




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

Labels: big 4, carnegie mellon, colleges, emi, internet, music, record companies, record labels, recording companies, riaa, sony, umg, universal, universities, vivendi, warner bros

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posted by Ray Beckerman @ 3/07/2009 08:17:00 PM 8 Comments Links to this post

In UMG Recordings v. Ceesay, a Maryland case against a pro se litigant who succeeded in having a default judgment vacated, Matthew Oppenheim, acting as the attorney for the plaintiffs, has filed a request for a settlement conference.

Plaintiffs' request for settlement conference



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posted by Ray Beckerman @ 3/07/2009 08:05:00 PM 3 Comments Links to this post

It appears that the Massachusetts case, UMG Recordings v. Straw, has been settled.

Notice of dismissal with prejudice



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 @ 3/06/2009 06:31:00 PM 2 Comments Links to this post

We have recently learned of a new contested case, filed in December, 2008, in Wichita, Kansas, Elektra Entertainment Group v. Maphet.

Defendant is represented by Jeff Griffith, of Griffith and Griffith, in Derby, Kansas.

Complaint
Answer



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 @ 3/06/2009 03:15:00 PM 4 Comments Links to this post

We have recently gotten some of the key papers in a contested Philadelphia case involving a University of Pennsylvania student, Motown Record Company v. Kovalcik.

The RIAA made a motion to dismiss counterclaims which was granted. Defendant made a motion for judgment on the pleadings which was denied without prejudice to reinstitution after the close of discovery. A schedule has been set, with discovery to be concluded by July 15th, and dispositive motions to be filed by August 3rd.

Complaint
Answer
Plaintiffs' memo of law to dismiss counterclaims
Defendant's opposition
Plaintiff's reply memo
Decision granting motion to dismiss counterclaims
Defendant's memo in support of motion for judgment on pleadings
Plaintiffs' opposition memo
Order denying defendant's motion without prejudice, fixing discovery schedule



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 @ 3/06/2009 12:41:00 PM 2 Comments Links to this post

There was an unusual docket entry in Capitol Records v. VideoEgg, withdrawing yesterday's order and opinion.

Will let you know when I find out why. Presumably there was some error which is in the process of being corrected.



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 @ 3/06/2009 09:25:00 AM 0 Comments Links to this post

A new RIAA case was filed in Omaha, Nebraska, on March 4, 2009, UMG Recordings v. Adams.

Apparently the reports of the RIAA having ceased bringing new lawsuits were "exaggerated".

Complaint

Commentary & discussion:

TechDirt
Numerama (French)
p2pnet.net
RSS Blogster
ZeroPaid
gulli (German)
Ars Technica





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 @ 3/05/2009 07:10:00 PM 2 Comments Links to this post

In Arista Records v. Does 1-16, targeting students at the State University of New York in Albany, the District Judge has issued an order affirming the decision of the Magistrate Judge, just 3 days after the appeal from the Magistrate Judge's decision was filed. The Judge did not even wait for the RIAA to file opposition papers.

Accordingly SUNY Albany must now respond to the RIAA's subpoena for its students' identities.

Decision affirming Magistrate Judge's decision



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posted by Ray Beckerman @ 3/05/2009 06:43:00 PM 1 Comments Links to this post

In Capitol Records v. VideoEgg, a case brought in Manhattan, District Judge Harold Baer has denied the motion of HI5 to dismiss the complaint for lack of jurisdiction and improper venue, but granted the motion to transfer the case to Northern District of California, for the convenience of witnesses and in the interests of justice.

Accordingly the case is transferred to San Francisco, California.

March 5, 2009, decision, denying motion to dismiss, granting motion to transfer

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posted by Ray Beckerman @ 3/05/2009 03:28:00 PM 0 Comments Links to this post

Amid reports that YouTube is about to become 'bedfellows' with UMG Recordings and its affiliates, who -- as my readers know -- are arch bad guys, I would urge my readers to stay far removed from patronizing their new 'venture'.



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posted by Ray Beckerman @ 3/05/2009 12:27:00 PM 1 Comments Links to this post

We have learned of a new contested case in Houston, Texas, UMG Recordings v. Lanzoni. The action was commenced in October, 2008. Although the defendant initially appeared pro se, she is now represented by counsel, veteran IP litigator Sid Leach of the well known, 425-lawyer, Phoenix, Arizona, based firm, Snell & Wilmer.

Interestingly, the RIAA complaint mentions MediaSentry but refers to it now as a "third party" rather than as an "investigator".

Complaint
Pro Se Answer



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posted by Ray Beckerman @ 3/05/2009 11:12:00 AM 7 Comments Links to this post

In Capitol Records v. MP3Tunes.com, in Manhattan, the plaintiffs' motion to dismiss counterclaims was granted as to all of the monetary claims, but denied as to the counterclaim for a declaratory judgment.

Decision dismissing counterclaims, except counterclaim for declaratory judgment



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posted by Ray Beckerman @ 3/05/2009 11:09:00 AM 3 Comments Links to this post

I recently 'retweeted', but forgot to post here, a link to a funny piece on "Popehat" about the "success" of the RIAA's 5-year plan.

I don't want to quote any of it, because it's pretty short and should be read as a whole. So when you're ready for a laugh, be sure to put your coffee where you can't knock it over, then go to:

"Dizzy with Success"

[Thanks to "Bill" for reminding me. -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

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posted by Ray Beckerman @ 3/04/2009 05:27:00 PM 1 Comments Links to this post

I've decided to take down the "IP Colloquium" that was previously posted.

1. I think it was a biased 1-sided hatchet job.

2. The streaming kept causing my browser to crash, and eventually caused my whole computer to crash.

3. My readers agreed with me that it was a hatchet job, and that the MP3 Player was causing their browsers to crash as well.

4. To those of you didn't get to hear it.... you didn't miss anything.

Commentary & discussion:

Copyright Litigation Blog





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posted by Ray Beckerman @ 3/04/2009 04:17:00 PM 7 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, Judge Gertner has issued an order suggesting that the parties file reconsideration motions, addressing the 1996 Judicial Council order that neither side had brought to the Court's attention.

The deadline for any such motions is March 11th, with opposition papers due March 18th.

March 4, 2009, fixing schedule for reconsideration motions



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posted by Ray Beckerman @ 3/04/2009 12:15:00 PM 4 Comments Links to this post

In Capitol Records v. Thomas, Jammie Thomas has filed the expert witness report of her expert, Professor Yongdae Kim of the Department of Computer Science of the University of Minnesota.

Professor Kim concluded that MediaSentry's methods are untrustworthy:

MediaSentry claims to have much experience in identifying individual committing copyright infringement. However, they insist that their methods are proprietary and thus cannot be subject to scrutiny by an impartial third party. No academic studies exist of their internal investigative techniques, methods, software, data collection practices, or even employee training in retaining collected data in a way that would allow for it to be used as evidence at a trial. While this report will address specific methodology questions at a later time, it suffices to say for the moment that MediaSentry’s claims of their ability to record activity on the FastTrack network and identity individual computers used to commit copyright infringement are not only unproven, but highly unlikely to be accurate. Combined with the incentive to accuse as many users as possible due to both the supposed deterrent effect on file sharing and the likely per-user compensation scheme that may exist between the Recording Industry Association of America (RIAA) and MediaSentry, their allegations are highly suspect.

A miscreant wishing to cover his or her tracks on the Internet has many options, the most likely of which is direct exploitation of one or more computers owned by a third party. Those computers can then be used for activity that the malicious party would not want linked to his or her Internet account. The average uninfected “life expectancy” of an Internet-connected computer running the Microsoft Windows XP operating system without any security updates (“patches”) is as low as 4 minutes [15]. Since all Windows XP systems attempt to connect to the Internet immediately upon installation/first boot, and since it requires some time to download all security updates from Microsoft (which, for a newly-installed Windows XP system, can measure in gigabytes, with a typical Internet connection only capable of handling a few megabytes per second), it would not be surprising that any given Internet-connected Windows XP computer be infected with any number of pieces of “malware” (software malicious to the user of the computer on which it is installed).

Dr. Jacobson’s expert witness and supplemental reports contain multiple factual errors and mis-statements of fact regarding the technologies relevant tothis case, and show evidence of faulty logic in making conclusions. Dr. Jacobson not only does not consider any alternative explanations for the log data provided by MediaSentry other than what is alleged by the plaintiff, but also fails to definitively bridge the gap between the evidence presented by MediaSentry and the identity of the computer used in the alleged infringement.

Dr. Jacobson draws the dubious analogy between the postal system and the Internet. This analogy is not only flawed in several respects, but provides the illusion of intuitive understanding of Internet technologies that is simply false. If we were to use that analogy, we must first assume that all letters travel in fully transparent envelopes. Second, that there are several postal stations between source and destination, and the postmaster at each station can re-write the letter in any way without being detected.4 Furthermore, the postmaster at any intermediate location the letter visits would be able to write a new letter from scratch and send it to a destination, faking the return address. All letters in response to the forged letter would be intercepted by our malicious postmaster, while the person on the other side of the exchange believes themselves to be corresponding with a person at another address altogether. This is called the “man-in-the-middle” (MITM) attack. This report has already mentioned the possibility that such an attack was carried out.

The analogy between networks and zip codes is also lacking, since it does not convey the ability of malicious postal operators to steal a chosen zip code and redirect all mail bound for addresses contained within it, nor does it allow for the potentially malicious movement of addresses between zip codes. Finally, it does not allow for the outright creation of zip codes, complete with fictitious addresses. All these events are difficult to detect and even more difficult to prevent.

The purpose of the above description is not to confuse anyone, but rather to show that the analogy Dr. Jacobson provided is dangerous in the sense that it conveys a great simplicity and determinism to the way the Internet works. This is not the case, and so we must drop this analogy altogether lest it affects our thinking about the actual technologies involved in this case. Therefore, let us drop the faulty analogy and move on.

Commentary & discussion:

Slashdot
p2pnet.net
Blown to Bits
Ars Technica

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posted by Ray Beckerman @ 3/03/2009 04:35:00 PM 5 Comments Links to this post

In SONY BMG Music Entertainment v. Moursy, the North Carolina State student targeted by the RIAA has filed papers opposing the RIAA's motion to dismiss her counterclaims.

Defendant's memorandum of law in opposition to RIAA motion to dismiss counterclaims

Commentary & discussion:

The Carolina Investigator





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posted by Ray Beckerman @ 3/03/2009 03:33:00 PM 1 Comments Links to this post

In Arista Records v. Does 1-16, a case targeting students at the State University of New York in Albany, John Doe #3 has filed papers seeking to overturn the decision of the Magistrate Judge denying his motion to quash and to vacate.

Declaration of Richard A. Altman and Objections



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posted by Ray Beckerman @ 3/03/2009 03:25:00 PM 2 Comments Links to this post

One of my young readers, "Michael", who is a law student, posted a comment yesterday suggesting that the order Judge Davis issued might actually be a standard form.

I reacted vituperatively to Michael, saying that based on my 35 years of litigation experience, it was not a standard form.

As it turns out Michael may have been right, and I may have been wrong; it appears to be a standard form commonly used in Minnesota's federal court for settlement conferences.

None of my 35 years of litigation experience have been in Minnesota.

I apologize to Michael and all of my other readers, and I thank Michael and those other readers, here and on Slashdot, who corrected me.

Moral of that story: don't hesitate to question 'authority even when the 'authority' has 35 years of experience on you.

Meanwhile, as to the substance of the order, standard form or not, the record companies will have to produce 'officers' or 'managing agents' with decisionmaking 'power'. That still means Mr. Oppenheim cannot call the shots on this one.

3/3/09 12:50 PM UPDATE
The question of whether it's a 'standard form' is not necessarily so clear. I have just heard from a few veteran Minnesota federal litigators who say they have never seen such an order in their experience.

3/3/09 3:17 PM UPDATE
It's now starting to appear that, although it is a form, it is a relatively new development that judges are starting to use it.

Commentary & discussion:

p2pnet.net





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posted by Ray Beckerman @ 3/03/2009 10:23:00 AM 11 Comments Links to this post

If there were any doubt left in anybody's mind as to whether District Judge Michael J. Davis, the extraordinary judge who presided over the ill fated October, 2007, first trial in Capitol Records v. Thomas, "gets it" about whom he is dealing with, and the toxic effect the RIAA, Matthew Oppenheim, and their legal team have had on the judicial process, and that doubt has not yet been removed by:

-his sua sponte calling a penalty on himself, upon realizing that the RIAA lawyers had failed to call to his attention controlling contrary 8th Circuit authority;

-his setting aside of the verdict due to that RIAA-created error;

-his noting in his decision setting aside the verdict that the outlandish size of the verdict was absurd, and calling upon Congress to prevent any similar recurrences; and

-his scheduling a two-day settlement conference for March 30th and 31st.......

all doubt should now be removed, by an order which he signed on February 25th, and which was filed by the Clerk today, laying out the parameters of the March 30th-March 31st settlement conference:

In the order he specifies that each of the plaintiff record companies must appear at the conference by "a duly authorized officer or managing agent". [I.e. NO MATTHEW OPPENHEIM standing in for the record companies, as he was permitted to do in Brooklyn]. And lest there be any doubt about his meaning, Judge Davis spells it out further: "each party must attend through a person who has the power to change that party’s settlement posture during the course of the conference. If the party representative has a limit, or 'cap' on his or her authority, this requirement is not satisfied." (underscoring in original)

[Ed. note. I know that this entire post is outside of my normal, dry, reporting-the-news editorial style. I apologize. But I am beyond thrilled. All I can say is Hip-Hip-Hurray for District Judge Michael J. Davis, a quality jurist if ever there was one. -R.B.]

February 25, 2009, Notice of Settlement Conference

Commentary & discussion:

p2pnet.net
Slashdot
Ars Technica