In a Philadelphia case, Malibu Media v. John Does 1-6, the Court has denied a defendant's motion to sever and quash.
Order denying motion to sever and quash, December 24, 2012, Hon. Cynthia M. Rufe
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Ray Beckerman, PC
Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.
The foundational premise of Locke's theory is that all people have a natural right of property in their own bodies. Because people own their bodies, Locke reasoned that they also owned the labor of their bodies and, by extension, the fruits of that labor. When an individual catches a fish in a stream, he has a right to keep that fish because but-for his efforts, the fish would not have been caught. For the same reason, an author has a right to his works because his efforts made the work possible. Under Locke’s view, "[o]ur handiwork becomes our property because our hands—and the energy, consciousness, and control that fuel their labor--are our property."Nearly all of this is misleading or out of context. Or just wrong.....
That is, "a person rightly claims ownership in her works to the extent that her labor resulted in their existence." If anything, under Locke's theory, intellectual property should be even more worthy of protection than physical property. Land and natural resources are pre-existing and finite, and one person's acquisition of a piece of tangible property may reduce the "common" that is available to others. Not so with tangible expressions: the field of creative works is infinite, and one person's expression of an idea does not meaningfully deplete the opportunities available to others; indeed, it expands the size of the "pie" by providing inspiration to others. Moreover, while tangible property such as land and chattel is often pre-existing and acquired through mere happenstance of birth, intellectual property flows directly from its creator and is essentially the "propertization of talent"--that is, "a reward, an empowering instrument, for the talented upstarts" in a society.
In an Indiana case, Malibu Media v. Does 1-14, plaintiff's counsel violated the Court's order to file the amended complaint under seal, thus disclosing the identities of the named defendants in public records. He has now moved to strike his amended complaint.
Plaintiff's motion to strike his amended complaint
Commentary & discussion:
Slashdot
Ray Beckerman, PC
In In re BitTorrent Adult Film Copyright Infringement Cases, defendant Doe 1's motion for leave to continue to proceed anonymously was granted.
December 3, 2012, Decision, Hon. Gary R. Brown, U.S. Magistrate Judge
In a Tampa, Florida, case, Sunlust Pictures v. Nguyen, the Court dismissed the case for several reasons, including attempted fraud upon the Court. The Court held:
The case is dismissed for failure to appear at this hearing, for failure to present a lawful agent, for attempted fraud on the Court by offering up a person who has no authority to act on behalf of the corporation as its corporate representative, and the Court will hear, by motion, a motion for sanctions and fees against this Sunlust entity and everyone affiliated with it, including a motion against Mr. Wasinger for his purposeful failure to appear at this hearing.Transcript of November 27th hearing.pdf
And a motion will also be heard on Mr. Duffy for his lack of candor in relation to his connection with this matter based upon the representation of Mr. Torres that he was contacted by the Prenda Law Group or Prenda Law, Inc. for the purpose of being retained as local counsel in this case and that was not presented to the Court in this purported correspondence. The case is dismissed.
I intend to advise the other Judges in the Courthouse of the nature of this matter and may refer this matter to the Florida Bar for further proceedings.
an IP address alone is insufficient to establish “a reasonable likelihood [that] it will lead to the identity of defendants who could be sued.” In re BitTorrent, 2012 WL 1570765, at *7. Judge Brown noted that an IP address only points to the internet account in question, and “[a]s a result, a single IP address usually supports multiple computer devices—which unlike traditional telephones can be operated simultaneously by different individuals.” Id. at *3 (citing U.S. v. Latham, No. 06-CR-379, 2007 WL 4563459, at *4 (D. Nev. Dec. 18, 2007)). Due to the prevalence of wireless routers, the actual device that performed the allegedly infringing activity could have been owned by a relative or guest of the account owner, or even an interloper without the knowledge of the owner.Judge Spatt noted that
a simple internet search reveals that detailed instructions are widely available that would allow anyone with only a moderate degree of computer knowledge to “hack” any wireless network that uses this feature, using almost any modern laptop. Furthermore, at least one website offers a $99 kit that gives the same capability to any user with even the most basic knowledge of computers. Many routers also use a security method known as Wired Equivalent Privacy (“WEP”), which the FBI warns has its own share of exploitable vulnerabilities. Federal Bureau of Investigation, Got a Wireless Network? It’s Time to Shore Up Security (May 4, 2007) available at http://www.fbi.gov/news/stories/2007/may/wireless_050407.Judge Spatt concluded "that the Plaintiff failed to establish a reasonable likelihood that the discovery requested would lead to the identity of the Defendants who could be sued."If the Court were to hold internet account holders responsible for any interlopers and guests who might infringe on the Plaintiff’s work, the Court would essentially be imposing a duty that every home internet user vigilantly guard their wireless network. The Court declines to impose such a duty. See AF Holdings, LLC v. Doe, No. 12-CV-2049, 2012 WL 3835102, at *3 (N.D. Cal. Sep. 5, 2012) (“AF Holdings has not articulated any basis for imposing on Hatfield a legal duty to prevent the infringement of AF Holdings’ copyrighted works [by securing his wireless network], and the court is aware of none.”).
Judge Spatt likewise agreed with Magistrate Judge Brown that there was no basis for joinder in these cases, under the Federal Rules.
November 20, 2012, decision of Hon. Arthur D. Spatt, District Judge
Ray Beckerman, PC
In Capitol Records v. MP3Tunes, the plaintiffs and the individual defendant Michael Robertson have moved for reconsideration.
Memorandum of Law in support of Robertson motion for reconsideration on jurisdictional issues
Memorandum of Law in support of Robertson motion for reconsideration on liability issues
Memorandum of Law in support of plaintiff's motion for reconsideration
The Court had previously severed the case as to all John Does other than Doe 1.
Memorandum of Law in support of Doe 1 motion to dismiss for failure to state a claim, and to quash subpoena
Ray Beckerman, PC
In a Massachusetts case, New Sensations v. Does 1-201, the Court, in an electronic order, has sua sponte severed and dismissed as to Does 2-201:
Judge Richard G. Stearns: ELECTRONIC ORDER severing all defendants but Doe 1 entered. Beneath the cloud of rhetoric, New Sensations, Inc., raises nothing in its Response beyond conjecture to suggest that these defendants are appropriately joined together. The court accepts counsel's representation of good faith in attempting to litigate these cases. However, under the civil rules, in fairness to all involved, including the court, these cases should be litigated and defended in separate causes of action. Therefore, the court will dismiss without prejudice defendants 2 - 201. (Zierk, Marsha) (Entered: 10/10/2012)
From Online Media Daily:
Complete article
ReDigi, Capitol Clash In Court About 'Used' Tracks
By Wendy Davis
ReDigi, a start-up that offers people a way to sell "used" iTunes tracks, asked a federal judge in New York to throw out a copyright lawsuit brought against it by Capitol Records. ReDigi lawyer Gary Adelman told U.S. District Court Judge Richard Sullivan at a Friday morning hearing that the company's technology enables consumers to resell digital tracks, the same way they can resell CDs or vinyl records. Adelman argued that consumers have a "first sale" right to resell products that they legally purchased. But Capitol countered that consumers aren't selling the same works that they purchased, but copies that they upload to the cloud. "First sale does not apply if there's been a reproduction," Capitol's lawyer, Jonathan Mandel, told Sullivan.
Commentary & discussion:
Techdirt
Ray Beckerman, PC
In Media Products v. Does 1-26, Media Products v. Does 1-40, and Patrick Collins v. Does 1-4, three cases pending in Manhattan before Judge Harold Baer, the Court has severed and dismissed as to all defendants other than Doe #1.
September 4, 2012, Opinion & Order, District Judge Harold Baer
Commentary & discussion:
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it's my blog dammit
Ray Beckerman, PC
Defendant Doe #4's motion to dismiss, sever, and quash has been denied, in Malibu Media v. Does 1-5.
August 24, 2012, Decision
In Patrick Collins Inc v. Does 1-45, a Manhattan BitTorrent download case, the motion by defendant Doe #41 to sever, dismiss, and quash, has been granted by District Judge Barbara S. Jones.
August 23, 2012, Order granting Doe #41 motion to sever, dismiss, and quash, Hon. Barbara S. Jones
In SONY BMG Music Entertainment v. Tenenbaum, the new District Judge assigned to the case has denied defendant's motion to set aside the verdict on common law remittitur grounds or on constitutional grounds.
August 23, 2012, decision of Hon. Rya W. Zobel
Commentary & discussion:
Slashdot
Digital Music News
In Digital Sin, Inc. v. Does 1-27, defendant Doe #1 has moved to dismiss the complaint for failure to state a claim.
Doe #1 Motion to Dismiss: Notice of Motion, Declaration, Exhibits
Doe #1 Motion to Dismiss: Memorandum of Law
A third John Doe has filed a motion to quash in
Patrick Collins Inc. v. Does 1-45, this one pro se, and the plaintiff has filed a memorandum of law opposing the motion.
Doe #1 motion to quash
Plaintiff's opposition memorandum
Jon Newton, scourge of the entertainment cartels and former owner/editor of Canadian freedom of speech advocacy site p2pnet, is back with a new blog -- http://www.myblogdammit.net
(The RSS feed for the site is http://www.myblogdammit.net/?feed=rss2)
Jon has been a great friend to this blog, and to the victims of the RIAA and movie industry bullying.
He had to stop publishing after suffering two heart attacks, a quadruple coronary bypass and a stroke.
Jon is one of the original supporters of Anonymous. http://anonnews.org/external-news/item/160/
He was also the defendant in a milestone defamation court case which, had it succeeded, would’ve put a permanent chill on the Internet in Canada with repercussions echoing around the world.
http://www.myblogdammit.net/?p=457
“I'll still be focusing on freedom of expression on and off-line, and the ongoing adventures of Anonymous", he says.
Jon's most recent post centers on the missing RIAA site.
http://www.myblogdammit.net/?p=765
Jon can be followed on Twitter as @jonnewton8