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

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

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. It was here:

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.

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

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.

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

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

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

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

California BitTorrent case dismissed with prejudice for failure to post undertaking, AF v Trinh

A San Francisco case, AF Holdings v. Trinh, has been dismissed with prejudice, based upon the plaintiff's failure to post an undertaking in the amount of $47,500.

Subsequent to the dismissal, defendant has moved for his attorneys fees.

November 9, 2012, Order, directing plaintiff to file undertaking in amount of $47,500, Hon. Charles R. Breyer, District Judge
February 25, 2013, Order, granting motion to dismiss with prejudice, Hon. Charles R. Breyer, District Judge
Declaration in support of motion for attorneys fees

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

"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

YouTube moves for summary judgment in Viacom v. YouTube

In Viacom v. YouTube, the defendant has made a new motion for summary judgment asking the court to now dismiss the remainder of the case.

Defendant's memorandum of law in supuport of motion for summary judgment
Plaintiffs' opposition memorandum
Defendant's reply memorandum

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

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

9th Circuit adheres to decision dismissing UMG v. Veoh on DMCA Safe Harbor grounds

In UMG v. Veoh, the US Court of Appeals for the Ninth Circuit has reaffirmed its previous ruling granting Veoh summary judgment dismissing the complaint, on the grounds that Veoh qualified for safe harbor treatment under the DMCA, and had complied with any legitimate takedown notices.

March 14, 2013, Decision granting rehearing and upon rehearing adhering to original decision, US Court of Appeals, 9th Circuit

Commentary & discussion:

Slashdot

Ray Beckerman, PC

Report & recommendation affirmed in Combat Zone v Does 1-84, Does 2-84 severed, dismissed

In Combat Zone v. Does 1-84, a Massachussets case, the report and recommendation of Magistrate Judge Jennifer C. Boal severing and dismissing as to Does 2-84 has been adopted in full by District Judge Michael A. Ponsor.

March 14, 2013, Order & Decision Adopting Report & Recommendation of Severance & Dismissal, Hon. Michael A. Ponsor, District Judge

Ray Beckerman, PC

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

Joel Tenenbaum files his appeal brief in 1st Circuit

In SONY BMG Music Entertainment v. Tenenbaum, Joel Tenenbaum has filed his Appellant's Brief.

Appellant's Brief

Ray Beckerman, PC

RIAA files opposition to Jammie Thomas-Rasset Certiorari Petition

In Capitol Records v. Thomas-Rasset, the RIAA has filed a brief opposing the grant of certiorari requested by Jammie Thomas-Rasset.

RIAA Brief In Opposition to Certiorari

Ray Beckerman, PC

Jammie Thomas-Rasset files reply brief in support of petition for certiorari

In Capitol Records v. Thomas-Rasset, the petitioner has filed a reply brief in support of her petition for certiorari.

Petitioner's Reply Brief
Ray Beckerman, PC

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

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

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

Ray Beckerman, PC

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


Ray Beckerman, PC

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

 

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.




Ray Beckerman, PC

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

Ray Beckerman, PC

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


Ray Beckerman, PC

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


Ray Beckerman, PC

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





Ray Beckerman, PC

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





Ray Beckerman, PC

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

Ray Beckerman, PC

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


Ray Beckerman, PC

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


Ray Beckerman, PC

Doe's motion to proceed anonymously granted in In re BitTorrent

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

Ray Beckerman, PC

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

Ray Beckerman, PC

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


Ray Beckerman, PC

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


Ray Beckerman, PC

Plaintiffs and individual defendant move for reconsideration in Capitol v MP3Tunes

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

Ray Beckerman, PC

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


Ray Beckerman, PC

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


Ray Beckerman, PC

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


Ray Beckerman, PC

Had a great time with Aram Sinnreich & Benjamin Kallos tonight

Ray Beckerman, PC

Plaintiff files response to motion to sever & quash in Malibu Media v Does 1-13

In Malibu Media v. Does 1-13, plaintiff has filed a response to Doe number 5's motion to sever and quash.

Plaintiff's response to Doe #5's motion to sever and quash


Ray Beckerman, PC

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


Ray Beckerman, PC

"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) *

$ 500.00 IPO Investor (Host)
$ 250.00 Venture Capitalist (Sponsor)
$ 100.00 Angel Investor (Regular Ticket)
$ 50.00 Incubator (Young Professional)
$ 25.00 Slashdot/Student Rate
$ 10.00 Suggested Contribution Simulcast/Video Viewer

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






Ray Beckerman, PC

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)

Ray Beckerman, PC

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


Ray Beckerman, PC

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

Ray Beckerman, PC

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


Ray Beckerman, PC

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


Ray Beckerman, PC

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


Ray Beckerman, PC

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


Ray Beckerman, PC

"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




Ray Beckerman, PC

Fascinating infographic by Katherine Long on "piracy" & the entertainment industry

Created by: www.OnlineGraduatePrograms.com


Ray Beckerman, PC

Joel Tenenbaum files appeal

In SONY BMG Music Entertainment v. Tenenbaum, defendant Joel Tenenbaum has filed his appeal. Notice of Appeal, September 17, 2012


Ray Beckerman, PC

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

Ray Beckerman, PC

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


Ray Beckerman, PC

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


Ray Beckerman, PC

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


Ray Beckerman, PC

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


Ray Beckerman, PC

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

Ray Beckerman, PC

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

Ray Beckerman, PC

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

Ray Beckerman, PC

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

Ray Beckerman, PC