Recording Industry vs The People

Saturday, December 13, 2008

Go to Change.gov and tell President-elect Obama what you think

President-elect Obama has a website, Change.gov, where, among other things, he has asked the American people for their input as to things that need to be done.

Please tell him what you think of the RIAA litigations, and what needs to be done about them.

Here is what I submitted:

As an attorney I have discovered tens of thousands of oppressive litigations that have been brought by the 4 large record companies against ordinary working people and their children, supposedly for "copyright infringement". The cases are based on zero evidence, and on faulty legal theories, and even in those cases where there has been copyright infringement, the conduct is so trivial that the cases should not have been brought at all, and the damages being sought are absurd. The cases are detailed on my blog "Recording Industry vs. The People", . They have caused untold anguish and hardship to the families touched by them. Recently Judge Michael J. Davis of the District of Minnesota has observed that these suits for large damages against ordinary, noncommercial, people, are draconian, and has asked Congress to enact legislation to prevent these outsize cases. (A copy of the decision is online at http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/virgin_thomas_080924Decision.pdf).

It is imperative that your administration do something to stop this reign of terror.

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

Friday, December 12, 2008

RIAA files reply papers in Atlantic Recording v. Raleigh, argues defendant had duty to investigate

In Atlantic Recording v. Raleigh, the RIAA has filed a reply memo in support of its motion to compel defendant to provide further information, arguing that defendant has a duty to investigate.

Plaintiffs' reply memo in support of motion to compel

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

Second default judgment motion rejected in Atlantic Recording v. Brennan, this time based on defective service of papers

In the landmark February 13, 2008, decision in Atlantic Recording v. Brennan, reported at 534 F. Supp. 2d 278, District Judge Janet Bond Atherton of the District of Connecticut denied an RIAA motion for default judgment on a number of grounds, one of which was her rejection of the RIAA's theory that there could be a violation of the distribution right just by 'making available'. The decision was the first in a string of decisions to reject the RIAA's 'making available' theory, and to apply the principle that there must be an actual distribution to implicate the distribution right.

The RIAA thereafter moved for "reconsideration", participating in a one-sided oral argument. The "reconsideration" motion was denied.

Subsequently the RIAA amended their complaint and moved again for a default judgment.

On December 10th, their second motion for a default judgment was denied, this time because they had failed to make proper service as they had been instructed to do.

December 10, 2008, decision denying motion for default judgment

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

SONY BMG Music enters into consent decree and pays $1M penalty over its gathering of information on children

SONY BMG Music has entered into a consent decree and agreed to pay a $1 million penalty over its unlawful gathering of information about children on its musicians' web sites.

Consent decree in US v. Sony

Source: Network World

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

Interesting interview with Terry McBride of Nettwerk Music about the new music business

Here's an interesting article by Mark Glaser of PBS's "Media Shift" about the new music business, in which he interviews Terry McBride of Nettwerk Music:

Nettwerk CEO Terry McBride Puts Fans in Charge of Bands
by Mark Glaser, December 11, 2008

The people formerly known as the audience (TPFKATA) are doing more than just fact-checking newspaper stories, time-shifting TV shows and capturing breaking news on their cameraphones. They are also helping run their favorite bands, designing and voting on concert T-shirts, mixing studio albums and even voting on which cities should be included in a band's tour.

At the vanguard of this movement of crowdsourcing music and putting the fans in control is Nettwerk Music, a record label and band management service in Vancouver, BC, that has become synonymous with digital music and alternative revenue streams. The label completely revamped itself in 2002, putting digital music and Internet promotion at the forefront and downplaying physical CD sales. Fans have been able to remix albums by Barenaked Ladies and rapper K-OS -- even before his new album comes out -- and Avril Lavigne has racked up millions of plays and possibly millions in revenues on YouTube.

The driving force behind the digital makeover of Nettwerk is CEO Terry McBride, a man who has helped pay legal fees for people sued by the RIAA for sharing music online. After McBride took such a strong stance for digital music -- and away from CD sales -- he started speaking more at conferences and talking to the media to spread his vision for a "digital valet" service. He thinks we will all end up paying $5 to $10 per month for access to all music, TV and movies, with a digital valet that knows our tastes and finds media for us.

Complete article.

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

Wednesday, December 10, 2008

Declaratory judgment counterclaims dismissed in RIAA's case against Usenet.com, Arista Records v. Usenet.com, Inc.

In Arista Records v. Usenet.com, Inc., the RIAA's case against web site Usenet.com, Inc., the Court has dismissed the defendant's counterclaims for declaratory judgment, on the ground that they were mere mirror images of the plaintiffs' complaint against defendant.

November 24, 2008, decision dismissing counterclaims

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

Interesting article in Nashua Telegraph, "Students Make Noise in fight with RIAA"

Interesting article by Dave Brooks of the Nashua Telegraph today about the UMG Recordings v. Roy case, in which law students from the Franklin Pierce Law Center, in Concord, New Hampshire, have come to the defense of a woman targeted by the RIAA:

Students make noise in fight with RIAA

The highest-profile fight between new technology and old copyright laws has taken a new twist in New Hampshire, where law students are helping to defend a Hudson woman from claims that she illegally downloaded songs.

"Most of them (students), I think, are interested in the case from an intellectual and academic standpoint. They also have an interest because it's relevant to their friends," said professor Ashlyn Lembree, who runs the intellectual property and transaction clinic at Franklin Pierce Law Center in Concord and who is overseeing the students' work.

Relevant, indeed. The Recording Industry Association of America has been suing over illegal song downloads for years. This has turned the RIAA into the baddest of bad guys for the iPod generation, and has also made the fate of digital recordings central to the struggle over copyright in the Internet age.Combine such notoriety with legal novelty – laws and court precedents are still unfolding, which is why it has produced such eye-popping results as a $220,000 jury award for downloading about $25 worth of songs – and you can see why the law center is interested.

Complete article

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

Tuesday, December 09, 2008

Defendant opposes RIAA motion to compel in Atlantic Recording v. Raleigh

In Atlantic Recording v. Raleigh, a St. Louis, Missouri, case, defendant has filed papers opposing the RIAA's motion to compel, on the ground that defendant has fully and completely responded to the 3 interrogatories in question.

Defendant's Response to Plaintiffs' Motion to Compel

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

Sunday, December 07, 2008

Magistrate Judge's Decision denying motion to dismiss and motion to quash in Elektra Entertainment Group v. Doe affirmed

In Elektra Entertainment Group v Doe, one of the cases targeting students at North Carolina State University, in Raleigh, North Carolina, the Magistrate Judge's decision denying defendant's motion to quash and motion to dismiss has been affirmed.

December 4, 2008, Decision affirming Magistrate Judge

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

Saturday, December 06, 2008

Reconsideration motion denied by Magistrate Judge in LaFace Records v. Does 1-5 in Michigan

In LaFace Records v. Does 1-5, a case in the Western District of Michigan targeting students at Northern Michigan University, the Magistrate Judge has denied reconsideration of his decision denying the motion by pro se defendant John Doe #5 to quash the RIAA's subpoena.

December 2, 2008, Order of Magistrate Judge denying motion for reconsideration

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

JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove