Monday, April 07, 2014

Excellent comment by Andrew Bridges on proposed "making available" right


Andrew Bridges is the fine California attorney who wrote one of the great amicus curiae briefs in Elektra v. Barker, and also wrote an excellent request to file amicus curiae brief in Capitol Records v. ReDigi.

Recently, he submitted this outstanding comment to the Copyright Office on the subject of "making available".

Response of Andrew P. Bridges to the Request for Comments for the Study on the Right of “Making Available.”

Sunday, March 23, 2014

"Florida Judge dismisses a Malibu case because Lipscomb failed to establish a connection between an IP address and person" ~ @FightCopyTrolls


Good article on the Fight Copyright Trolls website:
Florida Judge dismisses a Malibu case because Lipscomb failed to establish a connection between an IP address and person
We saw it coming: in less than two months in the Southern District of Florida, a venue where copyright troll Keith Lipscomb’s command and control is located,

Judge Federico Moreno ruled that there is no “good cause” to deviate from Rule 26(d), thus denying early discovery in Malibu Media v. John Doe, 14-cv-20216;

Magistrate Frank Lynch also denied Lipscomb’s motion for ex-parte discovery citing untimely copyright registrations in Malibu Media v. John Doe, 13-cv-14458;

Magistrate Andrea Simonton recommended to sanction Lipscomb in Malibu Media v. Pelizzo, 12-cv-22768;

Judge Ursula Ungaro denied Lipscomb’s routine motion for extension of time to serve the defendant and closed Malibu Media v. John Doe, 13-cv-23714.

In the latter case, on 10/29/2013 the judge sua sponte ordered to show cause why the Court may reasonably rely upon the Malibu’s usage of geolocation to establish the identity of the defendant (and also establish that the defendant may be found within this district).

Lipscomb responded on 11/12/2013, and apparently satisfied Magistrate Torres, to whom Judge Ungaro referred the case. As already mentioned, the case was closed not because of the OSC outcome, but for failure to serve the defendant.

Fast forward to March 2014. On 3/5/2014 in Malibu Media v Doe (FLSD 14-cv-20213), an identical order to show cause was issued by Judge Ursula Ungaro. Lipscomb replied, but this time he was not so lucky: .....


Complete article

Thursday, March 20, 2014

Ex-MP3tunes chief held liable in music copyright case ~ Reuters

Reuters reports:

Ex-MP3tunes chief held liable in music copyright case
By Nate Raymond

(Reuters) - The former chief executive of bankrupt online music storage firm MP3tunes was found liable Wednesday for infringing copyrights for sound recordings, compositions and cover art owned by record companies and music publishers once part of EMI Group Ltd.

A federal jury in Manhattan found Michael Robertson, the former MP3tunes chief executive, and the defunct San Diego-based company liable on various claims that they infringed on copyrights associated with artists including The Beatles, Coldplay and David Bowie.

The jurors also found MP3tunes was willfully blind to copyright infringement on its website, in what a lawyer for the recording companies suggested before the verdict would be the first ruling by a jury of its kind.
Complete article

Tuesday, March 18, 2014

Sunday, February 23, 2014

"Why YouTube's Automated Copyright Takedown System Hurts Artists" ~ TorrentFreak

Interesting article by Ben Jones at TorrentFreak:

Why YouTube's Automated Copyright Takedown System Hurts Artists
By Ben Jones
For some, getting a copyright claim on their YouTube video might be an inconvenience. For others, it’s a massive headache that ignores copyright law… in the name of enforcing copyright law.

Day in and day out automated bots detect and report millions of alleged copyright infringements, which are then processed by the receiving site without a human ever looking at them.

Needless to say, this process is far from flawless. In the past we’ve covered countless false, inaccurate, and just plain hilarious DMCA claims, but YouTube’s takedown process is particularly problematic.

Complete article

Friday, February 21, 2014

Motions for summary judgment and spoliation sanctions filed in Grooveshark case, Arista v Escape Media

In the RIAA's case against Grooveshark, Arista Records v. Escape Media, the RIAA has filed a motion for summary judgment and a motion for judgment based on spoliation of evidence.

Motion for spoliation sanctions, memorandum of law
Motion for summary judgment, memorandum of law

Capitol Records v MP3 Tunes, trial to start Tuesday February 25th in Manhattan


The trial in Capitol Records v. MP3 Tunes is scheduled to begin Tuesday, February 25th, in Manhattan, at the federal courthouse located at 500 Pearl St., New York, NY 10007-1312, courtroom 20B.

Tuesday, February 04, 2014

Motion to sever and dismiss granted in Killer Joe Nevada v Does 1-39

Hat tip to Ernesto at TorrentFreak:

In Killer Joe Nevada v. Does 1-39, and four similar BitTorrent downloading cases, in the Southern District of Iowa, the cases were dismissed and severed as to all defendants other than Doe 1, by District Judge Stephanie M. Rose. Doe #18 in one of the cases had moved to sever and dismiss. The court granted that Doe's motion, and sua sponte severed and dismissed in the other cases as well.

December 20, 2013, Decision, Severing and Dismissing as to Does 2-39, Hon. Stephanie M. Rose, US District Judge

Commentary & discussion:

TorrentFreak

Friday, January 24, 2014

Motion to certify order for interlocutory appeal granted in Capitol Records v. Vimeo


In Capitol Records v. Vimeo, the Court has certified its September, 2013, decision of the respective summary judgment motions for an interlocutory appeal.

The Court also partially granted defendant's motion for reconsideration seeking summary judgment dismissing the case as to additional videos, and granted plaintiff's motion for leave to amend its complaint.

December 31, 2013, decision of Hon. Ronnie Abrams

Wednesday, January 15, 2014

Empire State Building sues photographer for photographing topless model

In ESRT v. Henson, the Empire State Building has sued a photographer for photographing a topless model on the building's observation deck.

Summons and complaint

Monday, January 13, 2014

Summary judgment motions denied without prejudice in ABC v Aereo & WNET v Aereo

In ABC v. Aereo and WNET v. Aereo, the District Court has denied both summary judgment motions on the grounds that (a) it would be more efficient for them to be made after discovery is completed and (b) it might be more efficient to determine them after the U.S. Supreme Court has weighed in on the legal issues, after having granted certiorari to review the preliminary injunction ruling.

January 13, 2014, Decision, Denying Both Summary Judgment Motions Without Prejudice, Hon. Alison J. Nathan, District Judge

Friday, January 10, 2014

Supreme Court grants cert in Aereo cases

The Supreme Court has granted certiorari in WNET v. Aereo Inc.

The Washington Post reported:

Supreme Court to take on high-stakes TV dispute

The Supreme Court agreed Friday to decide a high-stakes dispute between the nation’s broadcast networks and an upstart Web company that is providing live television programming over the Internet.

Both the networks and Barry Diller-backed Aereo asked the justices to settle the legal fight that could radically change the way live television is delivered to American consumers and disrupt an economic model that accounts for billions of dollars in fees for the broadcasters.......

Complete article

The Second Circuit opinion to be reviewed was reported by us here

Monday, December 23, 2013

Plaintiffs file notice of appeal in Authors Guild v Google


In Authors Guild v. Google, the plaintiffs have filed a Notice of Appeal from the judgment dismissing their case.

Thursday, November 14, 2013

Google books case dismissed on fair use grounds


In Authors Guild v. Google, Google's motion for summary judgment dismissing the case on fair use grounds has been granted.

In a 30-page decision, Judge Denny Chin, who has been presiding over the case since its inception as a District Court Judge, but who is now a Circuit Court judge in the US Court of Appeals for the Second Circuit, reasoned that Google's "Library Project", which involved scanning books from libraries without permission of the copyright holders:

-was transformative in transforming "expressive text" into a "word index" and searchable data;
-does not supplant or supersede books since it is not a tool for reading books;
-adds value to the original;
-serves educational purposes, even though Google's own motive is commercial profit;
-limits the amount of text it displays in response to a search; and
-enhances, rather than detracts from, the value of the works.

Judge Chin concluded:

Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

Similarly, Google is entitled to summary judgment with respect to plaintiffs' claims based on the copies of scanned books made available to libraries. Even assuming plaintiffs have demonstrated a prima facie case of copyright infringement, Google's actions constitute fair use here as well. Google provides the libraries with the technological means to make digital copies of books that they already own. The purpose of the library copies is to advance the libraries' lawful uses of the digitized books consistent with the copyright law. The libraries then use these digital copies in transformative ways. They create their own full-text searchable indices of books, maintain copies for purposes of preservation, and make copies available to print-disabled individuals, expanding access for them in unprecedented ways. Google's actions in providing the libraries with the ability to engage in activities that advance the arts and sciences constitute fair use.



Decision granting defendant's motion for summary judgment, November 14, 2013, Hon. Denny Chin, Circuit Judge

Commentary & discussion:

Slashdot

Thursday, November 07, 2013

TechDirt: Prenda Loses Big Again; Court Orders It To Pay Back Settlement Money, Refers To Law Enforcement

Interesting article in TechDirt about Prenda's growing difficulties:

Prenda Loses Big Again; Court Orders It To Pay Back Settlement Money, Refers To Law Enforcement

And here we go again. In yet another Prenda court case, Team Prenda has lost big. These are the cases in Minnesota that were reopened earlier this year, after the court became aware of Judge Wright's ruling in California, showing how Paul Hansmeier, John Steele, Paul Duffy and Mark Lutz appeared to be engaged in fraud on the court. In August, the magistrate judge assigned to review the cases, Franklin Noel, started demanding real answers to questions -- answers which never came.

Instead, we got a hearing in Minnesota that revealed some explosive new info, while Mark Lutz disappeared never to be heard from again. While Hansmseier and Duffy were never able to produce Lutz or answers to Judge Noel's questions, they did try to get Judge Noel kicked off the case.

None of the above strategies worked. At all. Judge Noel today not only rejected the request to pull him off the case, but also slammed Team Prenda, yet again, ordered them to pay back all the settlement money they got from the specific cases involved and then referred the case to law enforcement to look into the activities of Hansmeier, Steele, Duffy and Lutz....

Complete article

Friday, October 11, 2013

Preliminary injunction denied in Hearst v. Aereo


In Hearst v. Aereo, brought in the District of Massachusetts, the Court has denied Hearst's motion for a preliminary injunction. The court also denied Aereo's motion to change venue to the Southern District of New York.

October 8, 2013, decision denying preliminary injunction, Hon. Nathaniel M. Gorton, District Judge

Monday, October 07, 2013

Aereo officers required to be deposed about patent applications


In ABC_v_Aereo, Magistrate Pitman has overruled Aereo's attorney/client privilege objections to testifying about their patent applications at deposition.

October 7, 2013, decision of Magistrate Judge Pitman, order further depositions of CEO & CTO re patent applications

[Ed. note] It seems a little scary to me to give copyright plaintiffs yet another 'in terrorem' power and motivation to sue -- the opportunity to use the lawsuit as a means for delving into the non-public details of a defendant's patented technology. ~ R.B.

Monday, September 23, 2013

Vimeo held to be covered by DMCA safe harbor in Capitol Records v. Vimeo


In Capitol Records v. Vimeo, LLC, the Court has partially granted and partially denied both sides' summary judgment motions, holding that Vimeo is protected by the DMCA "safe harbor", but that there are factual issues over certain videos:

-as to 10 of the videos, whether they were stored "at the direction of the user"; and
-as to 55 of the videos whether Vimeo had either "red flag" or actual knowledge.

September 18, 2013, Memorandum Decision and Order, Partially Granting and Partially Denying Summary Judgment Motions

Commentary & discussion:

Slashdot

Monday, August 19, 2013

Government seeks input as to copyright policy for digital age


The United States Department of Commerce Internet Policy Task Force has issued a 122-page paper which, among other things, calls for comment as to changes which should be made in the copyright law to accommodate the technological advances of the digital age, entitled "COPYRIGHT POLICY, CREATIVITY, AND INNOVATION IN THE DIGITAL ECONOMY" (PDF).

In a blog post about the paper, issued by the United States Patent & Trademark Office, entitled "We Want to Hear from You on Copyright Policies in the Digital Economy", Chief Policy Officer and Director for International Affairs Shira Perlmutter writes:

The Green Paper calls for new public input on critical policy issues that are central to our nation’s economic growth, cultural development and job creation..... [W]e will soon be reaching out to the public for views on a variety of topics. Please stay tuned for announcements about how to share your thoughts, insights, and recommendations.

In recent years, the debates over copyright have become increasingly contentious. Too often copyright and technology policies are seen as pitted against each other, as if a meaningful copyright system is antithetical to the innovative power of the Internet, or an open Internet will result in the end of copyright. We do not believe such a dichotomy is necessary or appropriate.....

By intention, the Green Paper does not set out substantive policy recommendations, except where the administration is already on record with a stated position. Rather, it seeks to provide a thorough and objective review of the lay of the land—describing changes that have already occurred, identifying areas where more work should be done, and setting out paths to move that work forward.....

... In the coming weeks, we will begin to move forward on the specific items outlined in the paper for IPTF action:

Establishing a multistakeholder dialogue on improving the operation of the notice and takedown system for removing infringing content from the Internet under the Digital Millennium Copyright Act (DMCA).

Soliciting public comment and convening roundtables on:

The legal framework for the creation of remixes—user-generated content that uses portions of copyrighted works in creative ways.

The relevance and scope of the first sale doctrine in the digital age.

The appropriate calibration of statutory damages in the context of
(1) individual file sharers and
(2) secondary liability for large-scale infringement.

Whether and how the government can facilitate the further development of a robust online licensing environment, including access to comprehensive public and private databases of rights information.



Commentary & discussion:

Slashdot

Friday, June 28, 2013

First Circuit affirms $675k verdict, calls Tenenbaum conduct "egregious"


In SONY BMG Music Entertainment v. Tenenbaum, the US Court of Appeals for the First Circuit has affirmed the jury verdict of $675,000, or $22,500 per downloaded mp3 single, terming Mr. Tenenbaum's conduct "egregious".

June 25, 2013, Opinion, US Court of Appeals, First Circuit

Friday, May 24, 2013

No multiple statutory damage award for single infringed work ~ Agence France Presse v Morel


In Agence France Presse v. Morel, a copyright case pending in Manhattan, Judge Alison Nathan clarified that there can be no more than a single statutory damages award per infringed work.

Memorandum and order dated May 21, 2013, Hon. Alison J. Nathan, District Judge

Friday, May 17, 2013

Magistrate judge recommends severance, dismissal, and quashing of subpoenas in Elf-man v Does 1-57 in Oregon

In Elf-man v. Does 1-57, and several other cases brought by Elf-man, LLC, in Oregon, the Magistrate Judge has recommended that the cases be severed and dismissed as to all Does other than Doe #1, and that the subpoenas as to those parties be quashed.

May 14, 2013, Order, Findings, and Recommendation, Hon. Thomas M. Coffin, Magistrate Judge

Severance, dismissal, and quashing of subpoenas granted in Oregon in Voltage Pictures v Does 1-198


In Voltage Pictures v. Does 1-198, and certain companion cases, the District Court of Oregon has severed and dismissed, and quashed the subpoenas, as to all Does other than Doe #1, both on the ground that allegations of being in a BitTorrent swarm are not subject to joinder, and on the ground that discretionary factors do not warrant joinder.

May 4, 2013, Order, Hon. Ann Aiken, District Judge

Wednesday, May 15, 2013

Aereo moves for summary judgment dismissing remaining claims

In WNET v. Aereo, and its companion case, defendant has moved for summary judgment dismissing the remaining claims, in the wake of last month's Second Circuit ruling affirming denial of plaintiffs' preliminary injunction motion.

Defendants' memorandum of law in support of motion for summary judgment

[Updated] Court withdraws much of its ruling exonerating MP3Tunes in Capitol Records v MP3Tunes


Update with correction: Hat tip to Barry Werbin of Herrick, Feinstein LLP, Chairperson of the New York City Bar Association’s Copyright and Literary Property Law Committee, who pointed out to me what I had missed -- where in his opinion Judge Pauley partially granted a defendant's motion for reconsideration:
On page 13, the court opens up the direct infringement judgment previously issued against Robertson only as to "EMI's ownership of the copyrights for two of the songs he sideloaded, ‘White Christmas’ by Frank Sinatra and ‘Devil in Me’ by 22-20s, because Plaintiffs did not provide registrations for those copyrights... Further, EMI relies on copyrights registered as compilations for thirteen of the songs Robertson sideloaded. Because compilations contain pre-existing constituent works that may have been fixed prior to February 15, 1972 or that may have been previously registered by another owner, Robertson has created an issue of fact with respect to those songs."


So defendant’s Roberson's motion was granted in part to that limited extent

My original post was as follows:

In Capitol Records v. MP3Tunes, in which the Court had been asked to reconsider its earlier decision, in light of the Second Circuit's subsequent ruling in Viacom v. YouTube, the record companies' motion has been granted almost entirely, and the defendants' motions denied.*

The district court:

-accepted the record companies' argument that there were several documents in the record which a jury could reasonably have interpreted as requiring further inquiry into specific and identifiable instances of infringement, thus possibly triggering the 'wilful blindness' issue and requiring explicit fact-finding
-"reluctantly" accepted the record companies' argument that MP3Tunes's "red flag" knowledge could not be resolved on summary judgment
-denied the record companies' request for reinstatement of their seperate "inducement" claim
-rejected defendants' argument that the algorithm which copied plaintiffs' cover art was covered by the DMCA safe harbor
-rejected defendant Robertson's argument that his personal liability for 'sideloading' some files due to evidence of an implied license by virtue of the record companies' making free downloads available
-rejected defendant Robertson's argument that the district court in New York did not have personal jurisdiction over him
-rejected defendant Robertson's argument that the vicarious liability claim against him should be dismissed

Memorandum and Order granting plaintiffs' motions for reconsideration and denying defendants' motions

*Although the decision states that defendants' motions were partially granted, I could not find any part of the decision which granted any part of defendants' motions. If you find anything, please shoot me a comment and let me know so I can correct this blog post. Thanks. -R.B.

Tuesday, May 07, 2013

Plaintiffs' lawyers sanctioned $81,319.72 & referred for disciplinary & criminal investigations in Ingenuity 13 v Doe


In a Los Angeles case, Ingenuity 13 LLC v. John Doe, the Court has issued sanctions in the amount of $81,319.72 against plaintiffs' attorneys, including Prenda Law, and referred them to both disciplinary and criminal authorities for further investigation. Among other things, the decision stated:
Plaintiffs have outmaneuvered the legal system. They’ve discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video. Then they offer to settle—for a sum calculated to be just below the cost of a bare-bones defense. For these individuals, resistance is futile; most reluctantly pay rather than have their names associated with illegally downloading porn. So now, copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry.
and
Plaintiffs can only show that someone, using an IP address belonging to the subscriber, was seen online in a torrent swarm. But Plaintiffs did not conduct a sufficient investigation to determine whether that person actually downloaded enough data (or even anything at all) to produce a viewable video. Further, Plaintiffs cannot conclude whether that person spoofed the IP address, is the subscriber of that IP address, or is someone else using that subscriber’s Internet access.
May 6, 2013, Order Issuing Sanctions, Hon. Otis D. Wright, II, District Judge

Tuesday, April 30, 2013

Viacom appeals from judgment dismissing YouTube case

Judgment has been entered dismissing Viacom v. YouTube, and some of the losing plaintiffs have filed a notice of appeal.

Wednesday, April 24, 2013

Plaintiff in Oregon ordered to show cause why John Doe cases should not be severed, Voltage v Does 1-198


In a group of Oregon cases brought by plaintiff Voltage Pictures against more than 600 "Doe" defendants, the Court has ordered plaintiff to show cause why the cases should not be severed.

Order to show cause why cases should not be severed, April 10, 2013, Hon. Ann Aiken, District Judge

Friday, April 19, 2013

Motion to sever, dismiss & quash granted in NJ case, Malibu Media v John Does 1-10


In a Newark, New Jersey, case, Malibu Media v. John Does 1-10, the Court has granted the motions of several defendants to sever, to dismiss the complaints, and to quash the subpoena.

April 19, 2013, Opinion and Order, Hon. Stanley R. Chesler, District Judge

Thursday, April 18, 2013

YouTube wins again

Once again, YouTube has won, in Viacom v. YouTube.

The plaintiffs had previously convinced the Second Circuit to remand the case to the district court for determination of some factual issues relating to specific videos. District Judge Louis L. Stanton has now resolved all of the issues in favor of YouTube, and once again dismissed the case.

In doing so he held that
-YouTube did not have knowledge or awareness of any specific infringement
-YouTube did not engage in "willful blindness" towards any specific infringement
-YouTube did not induce its users to commit copyright infringement or otherwise interact with its users to a point where it might be said to have participated in their infringements
-YouTube's syndication of videos did not involve manual selection or delivery of videos

April 18, 2013, Opinion Granting Summary Judgment to Defendant After Remand, Hon. Louis L. Stanton

Commentary & discussion:

Slashdot

Tuesday, April 16, 2013

2nd Circuit affirms denial of plaintiffs' preliminary injunction motion in WNET v Aereo

In a rare interlocutory appeal, in WNET v. Aereo, Inc., the Second Circuit has affirmed the district court's denial of plaintiff broadcasters' motion for preliminary injunction, following its earlier ruling against the MPAA in Cartoon Networks v. CSC Holdings.

The 62 page decision (35 pages for main decision, 27 pages for dissenting opinion) concluded that Aereo's system for allowing individual users to record and replay broadcasts did not constitute a "public performance" and therefore did not implicate the "public performance" right.

Since the plaintiffs were unlikely to prevail on the merits, the Court held, they were not entitled to a preliminary injunction.

Opinion of US Court of Appeals 2nd Circuit

Monday, April 08, 2013

Court sua sponte severs as to Doe defendants in Ohio cases, Safety Point v Does 1-14 et al

In a group of Cleveland, Ohio, cases, Safety Point Products v. Does 1-14, and three other cases, District Judge James S. Gwin of the Northern District of Ohio has sua sponte severed as to all John Does, on the grounds that "participation" in a BitTorrent "swarm" is too imprecise a factor to justify joinder under the Federal Rules and the Court was "unconvinced that Plaintiff has even pleaded a prima facie case of copyright infringement", as well as on the alternative ground that permitting joinder "violates a sense of fairness".

The Court further ruled that, even apart from the joinder question, it "would hesitate to subpoena the ISPs without further information regarding Defendants’ alleged conduct."

Opinion and Order, District Judge James S. Gwin, April 4, 2013

Tuesday, April 02, 2013

"ReDigi Loses: You Can't Resell Your MP3s (Unless You Sell Your Whole Hard Drive)" ~ TechDirt


Article by Mike Masnick in TechDirt:
ReDigi Loses: You Can't Resell Your MP3s (Unless You Sell Your Whole Hard Drive)
from the a-big-first-sale-loss dept

This is hardly a surprise at all. In fact, we expected this kind of ruling all along. ReDigi, the company that was trying to build a "market" around "used MP3s" has lost at the district court. As you may recall, ReDigi tried to set up a system that monitors your own files, so that if you "sell" a used MP3, you have to make sure it's been removed from your own system. As you might imagine, that system is not foolproof, but some effort has been made (and it's only allowed for reselling MP3s ReDigi can prove you've purchased, such as via iTunes, and not for files just ripped from CDs). While I fully expected ReDigi to lose, the ruling is still fairly distressing in just how badly it distorts other parts of the law, which may harm other, even more reasonable uses. Hopefully, ReDigi will appeal and fight back against the more extreme interpretation from the district court here.

First, the court looks into the question of whether or not a transfer of a copyrighted file, where only one file remains at the end, still violates the "reproduction" right. That is, if Bob transfers a file to Alice, and Bob's copy of the file is immediately deleted, is that still a reproduction under the Copyright Act? The court says yes:......
Complete article


Opinion, March 30, 2013

Saturday, March 23, 2013

Online publication of court records is privileged under the 1st Amendment: Nieman v VersusLaw

Hat tip to Prof. Eric Goldman's Technology & Marketing Law Blog:

The US Court of Appeals for the Seventh Circuit has dismissed a case against a group of search engine companies for linking to public judicial records, in Nieman v. VersusLaw Inc. The Court ruled that publicly available judicial records are privileged under the 1st Amendment, noting that that judicial "[o]pinions are not the litigants' property. They belong to the public, which underwrites the judicial system that produces them".

March 19, 2013, Decision, Affirming Dismissal of Complaint

Monday, March 18, 2013

Cert denied in Capitol Records v Thomas-Rasset

Hat tip to Phil Usher and Wired.com

The United States Supreme Court has denied certiorari in Jammie Thomas's case, Capitol Records v. Thomas-Rasset. This means that the award of $222,000, for downloading 24 files, stands.

US Supreme Court order list, March 18, 2013

Commentary & discussion:

Jon Newton
Copmputer World

Monday, March 11, 2013

Prenda law firm sues bloggers for criticizing them; EFF represents bloggers

Prenda Law Firm, one of the "copyright troll" law firms bringing mass "John Doe" cases for alleged BitTorrent downloading copyright infringements, and its principal, have sued two bloggers who have been critical of Prenda and the other "troll" lawyers. The Electronic Frontier Foundation has entered the fray to defend the bloggers.

Ray Beckerman, PC

Thursday, February 21, 2013

Court severs, dismisses, quashes, In Combat Zone v Does 1-84, & sanctions plaintiff's attorney

In a Boston case, Combat Zone v. Does 1-84, the Court, by Magistrate Judge Jennifer C. Boal, has issued (a) a report and recommendation that the case be severed and dismissed, and subpoena quashed, as to Does 2-84, and (b) an order sanctioning plaintiff's counsel for using subpoenaed information to obtain a settlement during the pendency of defendants' motion to quash.

Report and recommendation for severance and dismissal of case, and quashing of subpoenas
Order granting sanctions against plaintiff's attorney

Ray Beckerman, PC

Tuesday, February 19, 2013

Motion to dismiss complaint for failure to state a claim granted in AF Holdings v Rogers

In a San Diego, California, case, AF Holdings v. Rogers, a motion to dismiss the complaint, for failure to state a claim, has been granted. Chief Judge Barry Ted Moskowitz ruled as follows:

[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.
January 29, 2013, Order Partially Granting Motion to Dismiss for Failure to State a Claim, Hon. Barry Ted Moskowitz, Chief Judge
Defendant's memorandum of law in support of motion to dismiss

Commentary & discussion:

Slashdot

Ray Beckerman, PC

Saturday, January 26, 2013

Oral argument of reconsideration motions scheduled for February 14th in Capitol v MP3Tunes

A new scheduling order has been entered in Capitol Records v. MP3Tunes, LLC, fixing February 14th as the date for oral argument of the parties' respective reconsideration motions.

January 25, 2013, Scheduling order

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Ray Beckerman, PC

Friday, January 18, 2013

Plaintiff's discovery motion denied in Third Degree v John Does 1-110: "infringer might be someone other than subscriber"


In Third Degree Films v. John Does 1-110, a Newark, New Jersey, case, the Court has denied the plaintiff's motion for discovery, on the ground that the plaintiff had not submitted a discovery plan which takes into account the Court's concerns about ensnaring, and burdening, innocent people:
Plaintiff fails to define John Does 1-110 in its complaint other than to state that “[e]ach Defendant is known to Plaintiff only by an IP address.” (Comp. ¶ 2.) In some instances, the IP subscriber and the John Doe defendant may not be the same individual. Indeed, the infringer might be someone other than the subscriber; for instance, someone in the subscriber’s household, a visitor to the subscriber’s home or even someone in the vicinity that gains access to the network. See VPR Internationale v. Does 1-1017, No. 11-2068, 2011 WL 8179128 (C.D.Ill. Apr. 29, 2011). As a result, Plaintiff’s sought after discovery has the potential to ensnare numerous innocent internet users into the litigation placing a burden on them that outweighs Plaintiff’s need for discovery as framed.

Granting Plaintiff’s motion has the potential to permit Plaintiff to obtain detailed personal information of innocent individuals. This could subject an innocent individual to an unjustified burden.


Order denying discovery

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Ray Beckerman, PC

Sunday, January 13, 2013

Huffington Post: Verizon Copyright Alert System Would Throttle Internet Speeds Of Repeat Online Pirates


From Gerry Smith at the Huffington Post:


Verizon Copyright Alert System Would Throttle Internet Speeds Of Repeat Online Pirates 

 

Guilty of online piracy? Verizon may slow your high-speed Internet service to a crawl.
The company is considering punishing subscribers who illegally share movies or songs on the Internet by temporarily throttling their Web service to dial-up speeds.

An internal Verizon document leaked online Friday outlines the proposed "copyright alert program." The plan is part of a controversial strategy being rolled out in coming weeks by the entertainment industry and major Internet providers to crack down on Internet piracy, which content creators say costs them billions in lost revenue each year.

Under Verizon's proposed program, subscribers accused of copyright infringement will receive a series of alerts, which critics of such programs call "six strikes." After the first two offenses, Verizon will send emails to subscribers with a link allowing them to see if illegal file-sharing is operating on their computers and how to remove it, according to the leaked document, which was confirmed as authentic by a Verizon spokesman.....

Complete article

 










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Ray Beckerman, PC

My take on the Aaron Swartz tragedy: MIT & MA US Attorney can go to Hell


As a lawyer who's spent a lot of time trying to defend people from the Corporatocracy's iron grip on our judicial system, I am saddened but not in the least surprised over the assassination suicide of Aaron Swartz.

Here was an idealistic young man who essentially committed what was at worst a prank, for the purpose of making a statement on the importance of sharing -- as opposed to hoarding -- important research. He returned all of the data, and the organization which was supposedly 'victimized' dropped its charges, and expressed regret that it had ever been drawn into a criminal prosecution in the first place.

There is a special place in Hell for the a**holes at MIT who insisted on pursuing this matter, and for the heartless clones in the US Attorney's Office who insisted on seeking 30 years imprisonment.

That's what happens in a facist society, where big business owns the government and the universities.

Those at MIT and in the US Attorney's office responsible for the persecution prosecution of Aaron Swartz are a disgrace to their families, and have caused a black mark on their respective institutions which will never, ever be erased.

I call upon anyone who is the recipient of a request from MIT for money or anything else to tell them to go to Hell, and to tell them why.



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Wednesday, January 09, 2013

Defendant moves for summary judgment or dismissal in DC case, Patrick Collins v John Does 1-6

In a District of Columbia case, Patrick Collins, Inc. v. John Does 1-6, one of the defendants has moved for summary judgment or dismissal of the complaint.

Defendant's memorandum of law in support of motion for summary judgment or dismissal of complaint

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Thursday, January 03, 2013

John Doe 8 moves to sever, dismiss, quash in NJ case, Malibu Media v John Does 1-19


In a Trenton, New Jersey, case, Malibu Media v. John Does 1-19, John Doe #8 has moved to sever, dismiss, and quash.

Memorandum of law in support of John Doe #8 motion to sever, dismiss, and quash

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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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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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Ray Beckerman, PC

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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Ray Beckerman, PC

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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Ray Beckerman, PC