Recording Industry vs The People: April 2009

Thursday, April 30, 2009

Petition for rehearing en banc on telecasting issue denied by First Circuit in SONY BMG Music Entertainment v. Tenenbaum

Hat tip to Copyrights & Campaigns for this news:

In SONY BMG Music Entertainment v. Tenenbaum, the First Circuit has denied the defendant's motion for rehearing en banc on the telecasting issue.

Order denying rehearing en banc

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

RIAA asks court to accelerate June 5th hearing to next week, to rule that Chicago deposition can be taken by telephone, & to consider 'new' evidence

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has made a motion to:

-accelerate the June 5th hearing to next week; and
-take the Chicago deposition of a 'mystery witness' by telephone.

Plaintiffs' motion to accelerate June 5th hearing and for permission to conduct Chicago deposition of unnamed witness by telephone

Additionally, plaintiffs filed a "supplemental memorandum" in connection with a motion they made approximately 6 months ago, on the ground that they it contained "new evidence" they obtained 8 months ago.

Plaintiffs' Supplemental Memo in support of motion to compel discovery responses

[Ed. note. Time, once again, to remind the law students and fledgling lawyers out there not to practice law this way : (a) it is not recommended practice to tell a judge that she should accelerate the hearing date she set for decision of a number of motions, all involving voluminous paperwork, (b) there is no basis in the law for making a motion to compel a deposition without revealing the identify of the witness, the subject matter, etc., (c) it is inappropriate to attempt to submit as "new evidence" in support of a motion evidence which was in your possession two months prior to your making the motion, and (d) it is inappropriate to submit any "evidence" by a memorandum of law. Again I just want to remind you that this case is being litigated in a strange way by both sides, and there is nothing going on that should be emulated. It looks like both sides' attorneys are trying their hardest, not to win, but to lose, the case. Just disregard everything you see. I'm tempted to stop coverage of this case, because... well because I can't bear to watch. I'm going to start taking a poll on that; please respond by comment to this post. -R.B.]

Commentary & discussion:

Copyrights & Campaigns
p2pnet.net
gulli (German)

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

Good story in p2pnet about RIAA taking revenge on teenager Brittany Kruger

Good story in p2pnet today about the RIAA's taking revenge against Brittany Kruger, a Michigan teenager:

RIAA punishes Brittany for resisting

p2pnet news view | RIAA News:- They’re nasty. They’re vicious. They’re hookers working for the RIAA.

And they’ll (try to) justify the evil they do to people such as Michigan student Brittany Kruger by saying they’re lawyers so it’s OK: that it’s their duty to do whatever they can to help their clients, the unprincipled representatives of a corporate street gang called the Big 4.

Why do I mention Brittany in particular out of the 40,000 innocent people, including very young children, across America who are being harried and harassed by RIAA hit lawyers, such as those working for Holme Roberts & Owen or, on this occasion, by Matthew E. Krichbaum (right)?

Because she and her father, Randy, have been standing against false accusations levelled at her - that she’s an illegal distributor of copyrighted ‘product’ owned by Sony Music, UMG (Vivendi Universal), Elektra, Atlantic, and Warner Bros Records.

Brittany wouldn’t do what she was ordered to do by smiling HRO partner Donald Kelso (below), so now the gang is tuning her up, with Krichbaum on the front end.

Complete article

Commentary & discussion:

p2pnet.net (5/1)

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

Wednesday, April 29, 2009

Plaintiffs file opposition papers to defendant's motion for leave to amend answer in SONY v. Tenenbaum

Plaintiffs have filed their opposition papers to defendant's motion for leave to amend his answer in SONY BMG Music Entertainment v. Tenenbaum

Plaintiffs' opposition to defendant's motion for leave to amend answer

Commentary & discussion:

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

Motions adjourned in SONY BMG Music Entertainment v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the defendant's motion for reconsideration as to video streaming was denied, and all of the other motions have been adjourned to June 5th.

The docket entries are as follows:

Judge Nancy Gertner: Electronic ORDER entered denying 786 Motion for Extension of Time to File; denying 787 Motion for Reconsideration. See Electronic Order entered on 3/24/2009. (Gaudet, Jennifer) (Entered: 04/29/2009)

ELECTRONIC NOTICE of Rescheduling Hearing on Motions: [709] MOTION to Compel Discovery Responses from Joel Tenenbaum, [686] MOTION to Amend [625] Amended Answer to Complaint, Counterclaim, [672] MOTION for Protective Order, [693] MOTION to Add the Recording Industry Association of America (RIAA) as a Party to Defendant's Amended Counterclaim, [670] MOTION to Dismiss Counterclaims Asserted By Defendant Joel Tenenbaum, [806] MOTION to Amend [625] Amended Answer to Complaint, Counterclaim, [686] MOTION to Amend [625] Amended Answer to Complaint, Counterclaim, [779] MOTION to Dismiss : Motion Hearing is reset for 6/5/2009 02:30 PM in Courtroom 2 before Judge Nancy Gertner. (Gaudet, Jennifer)

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

Free Software Foundation files brief arguing RIAA damages theory unconstitutional in Philadelphia case, SONY BMG Music v. Cloud

In SONY BMG Music Entertainment v. Cloud, a case pending in Philadelphia, the Free Software Foundation has requested permission to file an amicus curiae brief arguing that the RIAA's statutory damages theory is unconstitutional.

Among other things, the brief:

-reviews case law and scholarship subsequent to the Supreme Court's decision in the State Farm case to the effect that statutory damages are subject to due process scrutiny under the test enunciated in State Farm and in the Gore case;
-analyzes the Supreme Court cases in Gore, State Farm, and Williams, as well as the 6th Circuit's decision in Zomba;
-discusses other authorities for the principle that statutory damages under the Copyright Act must bear a reasonable relationship to actual damages;
-argues that the RIAA and the Department of Justice ought not to be permitted to blur the distinction between their "downloading" claim and their "distribution" claim;
-argues that the RIAA and Department of Justice ought not to be permitted to speculate as to what the record companies' damages might have been had they been able to prove that the defendant was in fact a distributor;
-argues that the RIAA's theory that every unauthorized download is a lost sale for damages purposes has been discredited;
-argues that even under the Williams test, which the RIAA and DOJ claim to be applicable, the RIAA's statutory damages theory is still flagrantly unconstitutional;
-points out that even the Department of Justice, which has argued on the RIAA's behalf that "statutory damages" are different than "punitive damages", has itself taken the position -- but months ago -- that "statutory damages ...are similar to punitive damages"; and
-points out that the US Supreme Court has recognized that statutory damages are indeed similar to punitive damages.

Free Software Foundation Motion for Leave to File Amicus Curiae Brief
Proposed Amicus Curiae Brief Submitted by Free Software Foundation

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

Tuesday, April 28, 2009

IP Minister in UK rules out '3 strikes' law

According to this report in the Register, the IP Minister in Great Britain has ruled out a "3 strikes" law of the type sought by the RIAA/MPAA counterparts, under which an ISP would deny internet access to alleged file sharers.

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

In SONY BMG Music v. Tenenbaum, defendant moves for rehearing en banc, & stay, plaintiffs oppose defendant's motion to amend answer

In SONY BMG Music Entertainment v. Tenenbaum, defendant has moved for rehearing en banc of the 1st Circuit's ruling on internet streaming of the April 30th oral argument, and requested a stay in the lower court, while the plaintiffs have filed 'supplemental authority' opposing defendant's motion for leave to amend his answer. One of the authorities cited by the plaintiffs was a decision in a pro se case, UMG Recordings v. Martino.

Defendant's notice of motion for rehearing en banc, and district court motion for stay
Plaintiffs' supplemental authority opposing defendant's motion for leave to amend answer
Exhibit B-Decision in UMG Recordings v. Martino

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

Monday, April 27, 2009

Santangelo II case settled for $7000 payable in instalments -- Associated Press

According to this report by The Associated Press, the case against two of Patti Santangelo's children, Elektra Entertainment Group v. Santangelo II, has been settled for $7,000.00, payable in instalments.

Commentary & discussion:

p2pnet.net
p2pnet.net (4/28)
ZDNet

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

In Andersen v. Atlantic class action,plaintiff moves for class certification,papers sealed by court,defendant moves for dismissal of case

In Andersen v. Atlantic Recording, the Oregon class action, the following events have taken place:

-the plaintiff has moved for class action certification;
-the entire record of the motion for class action certification has been placed under seal; and
-the defendants have moved for "judgment on the pleadings" dismissing the case on the basis of the Noerr Pennington doctrine.

Additionally, on February 9th, the Court conducted an "in camera" conference with the defendants' counsel only, regarding a discovery motion. The transcript of that conference is also sealed.

Notification that plaintiff's brief for class action certification has been sealed
Defendant's brief in support of motion for judgment on the pleadings

[Ed. note. Very strange goings-on. Don't ask me what it means; everything significant has been "sealed". Question: are we still in the United States? -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

Denise Cloud moves for leave to respond to DOJ brief in Philadelphia case, SONY BMG Music Entertainment v. Cloud

In the Philadelphia case in which the Department of Justice filed a brief defending the constitutionality of the RIAA's statuory damages theory, SONY BMG Music Entertainment v. Cloud, the defendant has requested leave to file a response to the Government's brief.

Defendant's motion for leave to respond to DOJ brief

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Denise Howell's "TWiL" show #23, in which I participated, now available online

Episode #23 of Denise Howell's internet show, "This Week in Law", which was streamed live last Wednesday, is now available.

This is the show in which I participated, along with Colette Vogele, Eric Goldman, Evan Brown, and Leo Laporte.

"TWiL 23: P2P... You And Me"

Wiki

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

Saturday, April 25, 2009

Tenenbaum to move for rehearing en banc of decision barring internet streaming of oral argument

According to this report in ZDNet, the defendant will be moving for rehearing en banc of the First Circuit's decision which prohibited streaming of the April 30th oral argument in SONY BMG Music Entertainment v. Tenenbaum.

Rehearing "en banc" means a hearing by all of the judges of the First Circuit.

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

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