Recording Industry vs The People

Tuesday, March 23, 2010

Viacom v You Tube summary judgment motions unsealed

The motions by Viacom and YouTube for summary judgment, in Viacom v. YouTube, have been unsealed.

The arguments of the parties are summarized in their memoranda of law.

Viacom memorandum of law
YouTube memorandum of law

[Ed. note The Viacom memorandum of law, IMHO, is ludicrous.... not surprisingly since Viacom is represented by Jenner & Block. Their arguments if credited would mean that the Digital Millennium Copyright Act does not exist, and that every business which has relied upon it since inception is toast. Which would put the United States on a par with Zambia in world commerce and would put tens of millions of people -- the very people who are making the US even remotely competitive today -- out of work. If I were the Judge I would order plaintiff to show cause why its lawyers should not be sanctioned under Fed. R. Civ. P. 11 for making such a motion. -R.B.]

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Tuesday, March 09, 2010

Partial summary judgment motions made in Viacom v YouTube, documents under seal

In Viacom v. YouTube , the parties are making partial summary judgment motions on the applicability of the DMCA to YouTube.

The Court has initially permitted the parties to file their documents under seal.

[Ed. note. I find it disturbing that the papers are permitted to be filed under seal. Whatever happened to "courts of record"? There is too much of this going on, and it always seems to be in RIAA/MPAA cases. It used to be virtually impossible to get things filed under seal; now it seems to be a routine matter. Now that we finally have the technology to know and share what is really going on in our courts, the parties and/or the courts seem bound and determined to take that away from us. I sincerely hope that the media who have money for such things protest. -R.B.]

Commentary & discussion:

p2pnet.net

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Monday, March 08, 2010

Court rules Ms. Lindor may not move for attorneys fees

In UMG Recordings v. Lindor, in response to Ms. Lindor's request for (a) an order clarifying that the Court precludes her from making a motion for attorneys fees, or in the alternative (b) a pre-motion conference in connection with a planned motion for an order:

-determining the statute of limitations to have expired;
-determining her to be the prevailing party within the meaning of 17 USC 505; and
-awarding her costs, including reasonable attorneys fees,

the Court has issued an order which "restates that defendant's request for attorney's fees and costs is denied"

March 8, 2010 order denying attorneys fees
February 25, 2010, letter of Ray Beckerman to District Judge Hon. David G. Trager

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Friday, March 05, 2010

Capitol v Thomas Round 3 scheduled for October

In Capitol Records v. Thomas-Rasset, the trial has been scheduled for October 4th.

This will be the third trial in the matter, the first verdict having been overturned due to an incorrect jury instruction, the second having been overturned due to the unreasonableness of the size of the award. This trial will relate only to the measure of damages.

Notice of Trial Date

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Tenenbaum & his attorney ordered to pay costs of RIAA's motion to compel

In SONY BMG Music Entertainment v. Tenenbaum, Judge Gertner has granted the RIAA's motion for costs and fees incurred in connection with its motion to compel production regarding dissemination of mp3 song files by the defendant's counsel during the lawsuit:

Judge Nancy Gertner: Electronic ORDER entered granting [851] Motion for Costs and Fees Under Rule 37(a)(5). Plaintiffs request that the Court order the defense to pay the reasonable expenses they incurred in filing a motion to compel (document #842) that the Court granted on June 16, 2009. Federal Rule of Civil Procedure 37(a)(5)(A) provides that if a court grants a motion to compel a response to a discovery request, "the court must... require the party... whose conduct necessitated the motion, the... attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." An award of costs and fees to the prevailing party is mandatory unless the court finds that (1) "the movant filed the motion before attempting in good faith to obtain the... discovery without court action"; (2) "the opposing party's nondisclosure... was substantially justified"; or (3) "other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(A); see also Midland-Ross Corp. v. Ztel, Inc., 113 F.R.D. 664, 666 (D. Mass. 1987) (quoting M&D Builders, Inc. v. Peck, 109 F.R.D. 410, 411-12 (D. Mass. 1986)). The defendant has not filed an opposition to plaintiffs' motion for costs and fees, and the Court concludes that the plaintiffs' motion should be granted. As indicated in their motion to compel, the plaintiffs attempted to resolve their discovery dispute with the defendant, but the defense refused to disclose the requested information. The defense also has made little effort to show that its nondisclosure was "substantially justified." Defense counsel's terse response to plaintiffs' motion to compel merely stated that, in his personal opinion, the plaintiffs' requests were not relevant to this litigation. As indicated in this Court's June 16, 2009, order, plaintiffs' request for information relating to the defense's unauthorized distribution of the very copyrighted works on which plaintiffs' claims were based was clearly relevant to such issues as the willfulness of the defendant's conduct and the amount of damages to be awarded by the jury. Finally, the Court concludes that there are no extenuating circumstances in this case that would make the award of attorneys' fees and other costs unjust. Accordingly, the Court will hold both the defendant, Joel Tenenbaum, and his attorney, Charles Nesson, jointly and severally liable for the reasonable expenses that plaintiffs incurred in filing their motion to compel. See 8A Charles Alan Wright, Arthur Miller & Richard Marcus Federal Practice and Procedure § 2288, at 662 (2d ed. 1994) (noting that an award of reasonable expenses under Rule 37(a) may be made against both the losing party and his attorney and citing cases in which an attorney has been ordered to pay an award). The plaintiffs are ordered to file an affidavit containing an itemized statement of the expenses they incurred in filing the motion to compel by March 8, 2010. (Hourihan, Lisa)

Commentary & discussion:

Thursday, March 04, 2010

RIAA writes letter opposing Lindor's request for pre-motion conference for attorneys fees motion

In UMG Recordings v. Lindor, the RIAA has filed a letter opposing defendant's request for (a) a 'memorandum endorsed' order precluding an attorneys fee motion under the Copyright Act or , in the alternative (b) a pre-motion conference for an attorneys fees motion.

March 4, 2010, letter of Eve G. Burton to Hon. David G. Trager

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Saturday, February 27, 2010

5th Circuit rules innocent infringement defense not supported in Maverick v Harper

In Maverick Recording v. Harper, a case against a Texas teenager in which the trial court had held that there were triable issues concerning whether or not she could avail herself of the "innocent infringement" defense, the Fifth Circuit has reversed, and held that defendant could not invoke "innocent infringement" where she:

-had admittedly made unauthorized downloads of all of the 16 song files in question; and
-never disputed that she had "access" to the CD versions of the songs which bore copyright notices

The Court also found that the "making available" issue was irrelevant to the appeal, and that the "due process" issue as to the excessiveness of the statute's $750-per-infringed-work statutory damages had not been preserved for appeal.

5th Circuit Decision

[Ed. note. The Court's treatment of the innocent infringement defense is unsatisfactory. It appears that the Court may be misinterpreting the word "access" in the statute, following the same error committed by the Gonzalez court. The mere fact that a copy exists somewhere on the planet with a copyright notice does not preclude the "innocent infringement" defense. The defense was created to protect someone who -- like Ms. Harper -- had copied something which bore no copyright notice. The Court likewise errs in assuming, without plaintiffs' ever having proved, that the defendant had access to copies which bore the copyright notice.

I do not disagree with the proposition that the statute makes a person's lack of legal sophistication irrelevant if he or she made the infringing copy from a copy which bore the copyright notice. But that is a big "if", since it did not occur here. -R.B.]

Commentary & discussion:

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Thursday, February 25, 2010

Marie Lindor requests pre-motion conference for attorneys fee motion

In UMG Recordings v. Lindor, Ms. Lindor has requested a pre-motion conference in connection with a planned motion for an order:

-determining the statute of limitations to have expired;
-determining her to be the prevailing party within the meaning of 17 USC 505; and
-awarding her costs, including reasonable attorneys fees.

February 25, 2010, letter of Ray Beckerman to District Judge Hon. David G. Trager

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Wednesday, February 24, 2010

Tenenbaum case argued, decision reserved

According to a news report in the Boston Globe, the SONY BMG Music Entertainment v. Tenenbaum motion was argued yesterday, as scheduled, and decision reserved.

Commentary & discussion:

Thursday, February 18, 2010

Tenenbaum files reply brief rebutting RIAA arguments

In SONY BMG Music Entertainment v. Tenenbaum, defendant has filed a reply brief rebutting the RIAA's opposition papers, rebutting the RIAA's contention that an award of $675,000 -- or about 65,000 times the maximum actual damages sustained -- satisfies due process standards.

Defendant's reply brief in support of motion for new trial or remittitur

[Ed. note. This brief, unlike the RIAA and Justice Department briefs, actually does discuss the applicable authorities on the due process argument, and shows that the US Court of Appeals for the First Circuit -- in which the Massachusetts District lies -- has itself applied Gore and Campbell to statutory damages awards. Also the brief actually does look at Gore and Campbell, as well as Williams, and discuss them intelligently. So it looks like the issue has finally been properly framed, and it is now unimaginable that District Judge Gertner will accept the RIAA argument and reject the First Circuit's holding. Motion granted. -R.B.]

Commentary & discussion:

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