Monday, December 24, 2012

Motion to sever & quash denied in Philadelphia case, Malibu Media v John Does 1-6


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

Friday, December 21, 2012

EFF: "Tough Times for Trolls and their "Copyright Negligence" Scheme"


Interesting article by Mitch Stoltz of Electronic Frontier Foundation:


Tough Times for Trolls and their "Copyright Negligence" Scheme

Despite at least five smackdowns by federal judges, copyright trolls are still accusing Internet subscribers of "negligently" allowing someone else to download porn films without paying. Last week, subpoena defense attorney Morgan Pietz fought back by asking the Northern California federal courts to put all of the open "negligence" cases filed by a prolific troll firm in front of a single judge - a judge who already ruled that the "negligence" theory is bogus.

Complete article




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TechDirt: "RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation"

Interesting article by Mike Masnick of TechDirt:

RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation

from the must-pay-well dept

Over the last week or so, I've seen a number of folks in the usual crowd of copyright maximalists cheering on a new "paper" put forth by a group hilariously calling itself the Center for Individual Freedom, supposedly trying to establish the "constitutional and historical foundations of copyright protection." The "paper" (and I use that term loosely) itself does no such thing. It's a one-sided polemic about why copyright is property -- argued by selectively quoting a few historical claims, often out of context, and ignoring everything else. The six page document (quick read) was actually written by three lawyers... who admit that they work for the RIAA. The basic argument is that copyright is a "natural right," and that this idea was well established at the time of the Constitution. The framing, then, is that all the Constitution was really doing was codifying a natural right that all agreed was akin to property, and that this right cannot and should not be diminished or taken away.

To do this, the authors rely, almost exclusively, on some arguments that John Locke made. This is the go to move of copyright maximalists. Because John Locke argued that property rights were established as a result of one's labor, and thus a "natural right", and some of the founders were influenced by John Locke, voila, copyright was meant to be given as a natural right. As the paper notes:
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."

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.
Nearly all of this is misleading or out of context. Or just wrong.....

Complete article




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Friday, December 14, 2012

Indiana plaintiff's counsel violates order to file amended complaint under seal; moves to strike

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

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Wednesday, December 12, 2012

Jammie Thomas-Rasset files petition for certiorari in US Sup Ct


In Capitol Records v. Thomas-Rasset, Jammie Thomas-Rasset has filed a petition for certiorari with the United States Supreme Court, arguing that the 8th Circuit Court of Appeal's statutory damages award of $220,000 for downloading 24 mp3 song files was a violation of Due Process under State Farm v. Campbell, BMW v. Gore, and St. Louis I.M. & S. Railway Co. v. Williams.

Petition for certiorari

Commentary & discussion:

Slashdot

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Thursday, December 06, 2012

Severance & dismissal granted in Tampa case, Malibu Media v Does 1-28 #law


Hat tip to Cynthia Conlin, Esq.:

In a Tampa, Florida, case, Malibu Media v. Does 1-28, District Judge James D. Whittemore has severed and dismissed as to Does 2-28.

December 6, 2012, order and decision severing and dismissing as to Does 2-28, Hon. James D. Whittemore, US District Judge

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Friday, November 30, 2012

Florida case involving Prenda lawyers dismissed for attempted fraud upon the Court

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.

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.
Transcript of November 27th hearing.pdf

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Tuesday, November 27, 2012

Judge orders plaintiff's counsel to explain whether he entered into settlement in violation of court order


In Combat Zone v. Does 1-84, a Boston, Massachusetts, case, Magistrate Judge Jennifer C. Boal has ordered plaintiff's counsel to submit a statement explaining whether he has entered into a settlement with a defendant in violation of the Court's previously issued order directing him not to enter into any settlements.

November 26, 2012, Order of Magistrate Judge Jennifer C. Boal directing plaintiff's counsel to submit explanation

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Tuesday, November 20, 2012

Judge Spatt upholds all of Magistrate Brown's findings in In re BitTorrent


In a Central Islip case, Patrick Collins Inc. v. Doe 1, District Judge Arthur D. Spatt has upheld all of the findings and conclusions of Magistrate Judge Gary R. Brown (PDF), in In re BitTorrent Adult Film Copyright Infringement Cases, agreeing that
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.

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 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."

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

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Saturday, November 10, 2012

Court refuses to approve ex parte discovery in Discount Video v Does 1-29


In a Boston, Massachusetts, case, Discount Video Center v. Does 1-29, Chief Magistrate Judge Leo T. Sorokin has entered an order denying the plaintiff's motion for ex parte discovery, due to the plaintiff's failure to set forth a discovery plan that would be calculated to identify the actual copyright infringer, rather than the subscriber to the internet service. Judge Sorokin characterized plaintiff's plan to dismiss without prejudice as to one of the Does and to start a new action against that Doe, without knowing who the actual infringer is, as 'smacking of' a "bad faith effort to harass the third-party subscriber".

November 7, 2012, decision, denying motion for ex parte discovery, Hon. Leo T. Sorokin, Chief Magistrate Judge

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Friday, November 02, 2012

Court sua sponte severs & dismisses in New Sensations v Does 1-83, holds joinder not permissible


In a Massachusetts case, New Sensations v. Does 1-83, District Judge F. Dennis Saylor IV has sua sponte severed and dismissed as to Does 2-83, holding both that the requirement for permissive joinder that the claims arise from the same "transaction or occurrence" is not met, and that even if it had been met, there was an insufficient basis for the court to exercise its discretion in favor of joinder.

November 2, 2012, Decision of Hon. F. Dennis Saylor IV, severing and dismissing

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Thursday, October 25, 2012

Doe 1 moves to dismiss for failure to state a claim in Malibu Media v Does 1-11


In a Westchester case, Malibu Media v Does 1-11, Doe 1 has moved to dismiss for failure to state a claim, and to quash the subpoena served on the ISP.

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

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Wednesday, October 17, 2012

Tuesday, October 16, 2012

Combat Zone ordered to show cause why Does should not be severed in Combat Zone v Does 1-84


In Combat Zone v. Does 1-84, a Boston, Massachusetts, case, Magistrate Judge Jennifer C. Boal has ordered plaintiff to show cause why Does 2-84 should not be severed.

October 15, 2012, Order to Show Cause, Hon. Jennifer C. Boal, Magistrate Judge

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Monday, October 15, 2012

"Code v. Code" event, NYC Oct 17, 7 PM

Kallos for Council presents





Code v. Code Discussion Series: 
Laws that Hurt Us and Where They Come From
7PM to 9PM, Wednesday, October 17, 2012
Hive at 55, 55 Broad Street, 13th Floor, NY, NY
Featuring: 
Ray Beckerman, Attorney and Author opposing RIAA's slap suits for peer to peer file sharing of music.
Aram Sinnreich, Professor at Rutgers and Author of Piracy Crusade 
(available under Creative Commons at http://PiracyCrusade.com)
Event Fee(s) *








Signup:
 https://kallosforcouncil.com/civicrm/event/register?reset=1&id=27





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Friday, October 12, 2012

Court severs & dismisses in New Sensations v Does 1-201

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)


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Doe 5 moves to quash & sever in Malibu Media v Does 1-13, Long Island case


In Malibu Media v. Does 1-13, a Long Island case, Doe #5 has moved to sever and to quash.

Doe #5's motion to quash

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Saturday, October 06, 2012

Online Media Daily: "ReDigi, Capitol Clash In Court About 'Used' Tracks"

From Online Media Daily:



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.
Complete article

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Friday, October 05, 2012

Motions to sever & dismiss granted in Westchester cases, Malibu Media v Does 1-10


In a group of Westchester cases, including Malibu Media v. Does 1-10, back in August, District Judge Edgardo Ramos severed and dismissed all cases against John Does other than Does numbered 1.

Order granting discovery, severing, and dismissing, Hon. Edgardo Ramos, August 21, 2012

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Thursday, October 04, 2012

Plaintiff ordered to show cause why subpoenas should not be quashed in Combat Zone v Does 1-84


In a Massachusetts case, Combat Zone v. Does 1-84, Magistrate Judge Jennifer C. Boal has ordered the plaintiff to show cause why its subpoenas should not be quashed, on the ground that the subpoenas contained a notice which suggested that the recipients -- the owners of the IP access accounts -- had themselves been sued.

October 4, 2012, Order to Show Cause

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Wednesday, October 03, 2012

Motion to sever & dismiss granted in Third Degree Films v. Does 1-47


In a Massachusetts case, Third Degree Films v. Does 1-47, the Court has departed from its earlier authority, and granted a motion to sever and dismiss. The Court's 26-page opinion concludes that joinder is permissible, but that the Court should not exercise its discretion in favor of joinder.

October 2, 2012, Memorandum and Order, Hon. William G. Young, US District Judge

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Tuesday, September 25, 2012

Judge orders plaintiff's counsel to show cause why Does 2-201 should not be severed in MA case


In New Sensations v. Does 1-201, a Massachusetts case, the judge -- in response to an ex parte motion for expedited discovery -- sua sponte ordered the plaintiff's counsel to show cause why the case should not be severed as to Does 2-201.

September 21, 2012, Order to Show Cause, Hon. Richard G. Stearns, US District Judge

Commentary & discussion:

Techdirt

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Thursday, September 20, 2012

"Porn suits" -- interesting article by Paul Rapp, Esq.

Interesting article by Paul Rapp, Esq., a Massachusetts attorney:

Porn Suits

 This article originally appeared in the 9.20.12 issue of Metroland.



In recent months there has been a flood of federal copyright infringement lawsuits that are having a severe impact on a lot of innocent people.  These lawsuits are a variant on the P2P suits brought by the major record companies and movie studios several years ago, a strategy that was a public relations and a financial disaster for the various companies.  These new suits are fine-tuned and efficient, and they’re brought by little-known companies that could care less about their public image.  These are porn suits.
            It works like this: a porn company hires an “investigator” to monitor bit-torrent activity for a particular movie.  The investigator collects all of the internet addresses that were downloading from a torrent over a 2-3 month period, and divvies them up by state and by the internet companies supplying service to the internet addresses.  The porn company lawyer then starts a lawsuit against all of the internet addresses in a given state that were on the torrent for a given movie.  The cases are captioned “[Porn Company] v. John Does 1-120.”  The cases all have multiple John Doe defendants, often over 100.   The porn company then gets the court’s permission to engage in early “discovery” so it can get the real names associated with the internet addresses that were identified by the investigator.  Permission is routinely granted, and the porn company subpoenas the internet companies (Time Warner, Comcast, etc.) for the names.  The internet companies then contact each of its subscribers, explaining that the subscriber is going to be named in a lawsuit for downloading a porn film (and these films have charming titles like “Anal Cum-swappers 2” and “OMG I’m Banging My Daughter’s BFF”) in 30 days.  The subscriber’s options are (1) to do nothing and be named in the lawsuit, (2) go to court to quash the subpoena, or (3) contact the porn company’s lawyer, who will demand $3000 to quietly let you out of the lawsuit, with your good name intact.......

Complete article



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Monday, September 17, 2012

Thursday, September 13, 2012

Court severs & dismisses in Media Products v Does 1-26 and 2 related cases

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

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Tuesday, September 11, 2012

8th Circuit upholds constitutionality of $9250-per-work statutory damages in Capitol v Thomas


In Capitol Records v. Jammie Thomas-Rasset, the US Court of Appeals for the 8th Circuit:

-held that the award of $222,000, or $9250 per song, is not an unconstitutional violation of due process, and
-did not reach the "making available" issue.

Decision of US Court of Appeals for the 8th Circuit

Commentary & discussion:

Slashdot
it's my blog dammit

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Wednesday, September 05, 2012

Doe #83 moves to dismiss in Massachusetts case, Media Products v Does 1-120

In a Massachusetts case, Media Products v. Does 1-120, Doe number 83 has filed a motion to dismiss.

Defendant Doe 83's memorandum of law in support of motion to dismiss

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Tuesday, August 28, 2012

Internet tv streaming service held not to be a "cable system" therefore unable to obtain compulsory license in WPIX v ivi


In WPIX v. ivi, the 2nd Circuit has held that an internet tv streaming service is not a "cable system", and therefore not able to obtain the compulsory retransmission license available to cable systems.

August 27, 2012, decision of US Court of Appeals for the 2nd Circuit

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Doe 1 files reply memo supporting motion to dismiss for failure to state claim in Digital Sin v Does 1-27

In Digital Sin, Inc. v. Does 1-27, plaintiff has filed its opposition papers, and defendant Doe 1, who moved to dismiss for failure to state a claim, has filed his reply memorandum of law.

Plaintiff's opposition memorandum of law
Defendant's reply memorandum of law

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Friday, August 24, 2012

Motion to sever, dismiss, and quash denied in Malibu Media v Does 1-5

Defendant Doe #4's motion to dismiss, sever, and quash has been denied, in Malibu Media v. Does 1-5.

August 24, 2012, Decision

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Thursday, August 23, 2012

Doe #41's motion to quash, sever & dismiss granted in Patrick Collins Inc v Does 1-45

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

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Motion to reduce $675,000 verdict denied in SONY v Tenenbaum

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

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Friday, August 17, 2012

Doe #1 moves to dismiss for failure to state a claim, in Digital Sin v Does 1-27

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

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Plaintiff's lawyer blames it on the paralegal in bid to avoid sanctions in In Re BitTorrent

In In re BitTorrent Adult Film Copyright Infringement cases, in which the Court has been concerned about "indicia of improper conduct" by plaintiff's counsel, the plaintiff's lawyer has filed a declaration claiming that the misconduct was the result of an error, and was not intentional. He stated that there was a mistake by the paralegal, and that he failed to catch the mistake.

Kotzker declaration



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Saturday, August 11, 2012

All subpoenas quashed in Discount Video Center v Does 1-29

In a Massachusetts case, Discount Video Center v. Does 1-29, the Court quashed all subpoenas served, since the plaintiff had misleadingly represented that it had sued all of the 29 ISP subscribers, when in fact it could only have sued the unknown copyright infringers, not the subscribers.

August 10 2012, Memorandum and Order Quashing All Subpoenas


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Friday, August 10, 2012

Order to show cause issued in In re BitTorrent Adult Film Copyright Infringement Cases

In In re BitTorrent Adult Film Copyright Infringement Cases, Magistrate Judge Gary Brown has ordered the Doe #1 defendants to show cause at a hearing why their identities should not be divulged to the plaintiffs.

Notice and Order to Show Cause dated August 10, 2012



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Thursday, August 09, 2012

myVidster's linking to, and framing of, infringing videos, held not likely to constitute direct or contributory infringement

In Flava v. Gunter, an injunction case against myVidster.com, a social bookmarking site, the US Court of Appeals for the 7th Circuit reversed a preliminary injunction which had been granted by the district court against myVidster, holding that the site's linking to, and framing of, infringing videos hosted elsewhere, did not likely constitute either a direct or a contributory infringement of plaintiff's rights in the videos.

August 2, 2012, opinion



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Tuesday, August 07, 2012

Doe #1 files pro se motion to quash & plaintiff opposes in Patrick Collins v Does 1-45

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

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Monday, August 06, 2012

Friday, August 03, 2012

Motion for discovery granted in Digital Sins v Does 1-27

In Digital Sins v. Does 1-27, the plaintiff's ex parte motion for discovery has been granted.

June 6, 2012, Opinion & Order granting discovery



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Tuesday, July 31, 2012

Jon Newton is baaaaaack

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








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Judge concerned about "indicia of improper conduct by plaintiffs' counsel" in In re BitTorrent Adult Film Copyright Infringement Cases

In In re BitTorrent Adult Film Copyright Infringement Cases, in Central Islip, Magistrate Judge Gary R. Brown has again become concerned with "indicia of improper conduct by plaintiffs' counsel", and directed plaintiff to provide a sworn response to the Court's list of questions.

July 31, 2012, Order





Commentary & discussion:

Technology & Marketing Law Blog








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