Recording Industry vs The People

Saturday, July 29, 2006

RIAA Tries to Get Brooklyn Judge to Follow Texas and Arizona Cases Where Judges Said They Have "Incomplete Understanding" of Technology

In Maverick v. Goldshteyn, in Brooklyn federal court, where a motion to dismiss the complaint has been pending for about 7 months, the RIAA suddenly -- on Friday, July 28th -- sent the judge a letter enclosing 3 decisions, 1 from Arizona, 1 from Waco, Texas, and 1 from Abilene, Texas, all of which declined to rule on the RIAA's "making available" argument on the ground that the judges had "incomplete understanding" of Kazaa technology to decide the motion.

On July 29th Ms. Goldshteyn's lawyer (the undersigned) sent his own letter to the judge indicating why those decisions were bad authority:

July 28, 2006, Letter of Richard Gabriel to Judge Trager*
July 29, 2006, Letter of Ray Beckerman to Judge Trager*

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Friday, July 28, 2006

Another Motion to Dismiss Complaint Denied in Texas, Again Because Court has "Incomplete Knowledge of Technology", in Fonovisa v. Alvarez

Yet another motion to dismiss a complaint has been denied in Texas, again with the judge saying that he has "incomplete understanding of the P2P technology at this stage" to decide whether or not "the mere presence of copyrighted sound recordings in Defendant's share file constitutes infringement."

This was in Fonovisa v. Alvarez in Abilene, Texas.

Decision and order denying motion to dismiss complaint*

Once again the judge has ruled that the defendant must go through the expense of pretrial discovery before he can have a sufficient "understanding" to decide the issues.

This is the same conclusion reached in Waco, Texas, in Warner v. Payne, and in Arizona in Interscope v. Duty.

*Document published online at Internet Law & Regulation

Thursday, July 27, 2006

My Open Letter About the Kazaa Settlement

My editorial opinion:

I have seen reports that Kazaa has entered into a settlement with the RIAA, under which it will seek to sell "licensed" RIAA music throught p2p technology.

The terms of the settlement have not been disclosed.

I am assuming that the settlement does not in any way affect the thousands of lawsuits against Kazaa customers. If that is so, it's wrong.

Many of the fine people who are being terrorized by the RIAA are in this mess because of Kazaa, and a settlement which gets Kazaa off the hook with the RIAA but doesn't do anything for the good folks who took Kazaa at its word, is not something I find comforting in the least.

I would have thought that Kazaa would have done something to end the reign of terror against its customers.

If the settlement doesn't provide for the cessation of RIAA litigation against Kazaa customers, and if Kazaa will be working with the RIAA to sell licensed distribution, I would call upon all members of the public to boycott the 'new Kazaa' to the same extent that they are boycotting the RIAA.

And I would call upon all defendants in RIAA cases, who are being sued because of Kazaa, to consider -- if they have the means to do so -- cross suing Kazaa.

-R.B.

RIAA Discontinued Case in California, Virgin v. Marson

We have recently learned of a case in California, Virgin Records v. Marson, where earlier this year, after 6 months of litigation, the RIAA dropped the case.

As in all of the RIAA cases, the only basis the RIAA had for its claim against Mrs. Marson was that she paid for the internet access and owned the computer on which the shared files folder resided.

Faced with evidence that numerous other people had access to the Internet connection and/or the computer and that any of those people could have engaged in the allegedly infringing conduct, the RIAA agreed to dismiss.

Stipulation and Order of Dismissal*

(Mrs. Marson's legal team at Coast Law Group, headed up by Seyamack Kouretchian, are litigating another p2p filesharing case brought by the motion picture industry entitled Universal City Studios Productions, LLLP v. Shawn Hogan. Because (a) the Hogan case involves many of the same issues that arise in the RIAA cases, (b) the MPAA has been engaged in cartel-like behavior with the RIAA, and (c) Mr. Hogan (unliked most defendants in these cases) is a litigant who is in a position to fight back, thereby increasing the likelihood of a full and fair airing of the copyright law issues, we are initiating coverage of that case in our index of litigation documents, although it does not directly involve the RIAA. )

Tuesday, July 25, 2006

Urgent Appeal for Information from All People in the Radio Business!!!!

Urgent appeal for help from our friends in the radio business...

For one of our litigations we are collecting information on the use by the major record labels of peer-to-peer file sharing technology to make song files available to radio stations.

Please circulate this to anyone you know who is in, or may know people who are in, the radio business.

Anyone who has information is urgently asked to communicate it to

Ray Beckerman
212-763-6809
rbeckerman@vanfeliu.com

or

Ty Rogers
212-763-6838
mtrogers@vanfeliu.com

Thank you.

Monday, July 24, 2006

Lindor Motion to Amend Answer, to Include Unconstitutionality Defense, Fully Briefed

The motion by Marie Lindor in UMG v. Lindor to amend her answer to include a defense challenging the constitutionality of the RIAA's argument that it is entitled to $750 per song damages for 70 cents per song downloads has been fully briefed, and is now awaiting court action.

Copies of Ms. Lindor's reply papers are below:

Reply Memorandum in Support of Defendant's Motion*
Reply Affidavit in Support of Defendant's Motion*

* Documents published online at Internet Law & Regulation

Freedom of Speech Fundraiser for P2P Net to Take Place in Toronto, Canada, Saturday August 5th

As many of you may know, Sharman Networks (the owner of Kazaa) and its CEO, Nikki Hemming, have sued p2pnet owner Jon Newton, in Canada, in a suit that threatens freedom of speech. Please if you can be in Toronto on August 5th attend the "defense fund" fundraiser scheduled for Sautrday, August 5th, at 9:00 p.m.:

Online Freedom of Speech Fundraiser

Saturday August 5th, the Rivoli Restaurant & Club (332 Queen St. West, Toronto)

Doors open: 9:00 P.M.

Artists: Aceface, Dennis O'Toole, Kobotown, Lindy, and Neil Leyton.

Background:

Jon Newton, from Vancouver Island, BC, the founder and editor of p2pnet.net , is being sued by Nikki Hemming, ceo of the infamous Australian Kazaa p2p application. p2pnet was initially also being sued by Kazaa owner Sharman Networks.

The precedent-setting case, the first of its kind, vividly illustrates the danger of applying ancient laws to Freedom of Expression in the digital age.

Sharman and Hemming claimed they'd been libelled in p2pnet posts. But Sharman recently abandoned its case, leaving Hemming to carry the allegation that Newton defamed her in an article outlining Australian court proceedings into her assets, by herself. She also continues to demand the identity of a p2pnet reader who'd posted an anonymous comment included in the same story.

"Our Canadian libel laws say 'Guilty until proven innocent' and if Hemming wins, Canadian bloggers might as well pack up and close their Net accounts because the right of online freedom of speech will be killed stone dead," says Newton.

"And there's something else: as far as I'm concerned, an anonymous post is the same as a confidential source. I don't have to like a post, or even agree with it. But I believe that as an honest and responsible human being, I do have to safeguard the poster, if indeed I know who he or she is which in this case, I didn't."

To help Newton with his legal fees, Toronto based singer/songwriter Neil Leyton has written a song about the situation, and has organized a fundraiser for August 5th at the Rivoli, with fellow Fading Ways Music label-mates Aceface, as well as friends Lindy, Kobotown and Dennis O'Toole.

The Rivoli doors open at 9 PM, and the cover is $10.

Leyton's song, as well as other music donated by the participating artists, will also be on sale at the concert.

By way of a pre-concert information session / press conference, a special Online Freedom of Expression round table is also taking place at Toronto's Centre for Social Innovation, 215 Spadina Avenue, Suite 120, Toronto, from 3 - 5PM. The round table will feature the following panelists:

Moderator: Rob Hyndman - http://www.robhyndman.com/

Jon Newton - http://p2pnet.net/story/9333

Jon will have statements from:

Jon will have statements from:

* Phillipa Lawson of CIPPIC

* Michael Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa

* BC media lawyer Dan Burnett who's representing Jon in his upcoming libel case with Kazaa boss Nikki Hemming

* Jason Munning of Ten Mile Tide, the former Kazaa poster band which dropped its association with Sharman Networks and put its albums online for free to protest the libel action. http://www.p2pnet.net/story/9023

Jason Young of Deeth Williams Wall - http://www.dww.com/bios/jmy.htm

Michael Pilling of OpenPolitics.ca: http://www.openpolitics.ca/tiki-index.php

Russell McOrmond of Digital Copyright Canada: http://www.digital-copyright.ca/

For additional information contact Neil Leyton at nleyton@gmail.com, or Tina Siegel at tina.siegel@gmail.com.

Saturday, July 22, 2006

Anti-DRM Forces Come to the Aid of RIAA Defendants

We are excited to report that Defective by Design , the free software movement's campaign against the record companies' use of digital rights management ("DRM"), has started a fund-raising drive to help victims of the RIAA v. Consumer lawsuits.
The link for making contributions is:
https://www.fsf.org/associate/support_freedom/dbd_donate

Feel free to copy the link to your own blog or web site, and to circulate it far and wide.

Wednesday, July 19, 2006

Motion to Dismiss Complaint Denied in Warner v. Payne, in Waco, Texas

We have just learned of a motion to dismiss complaint made in Waco, Texas, in Warner Bros. Records v. Tyler Payne, and that the motion has been denied:

Order denying motion to dismiss complaint*

As in Interscope v. Duty, the Court indicated that

"the Court is not prepared at this stage of the proceedings to rule out the Plaintiffs' "making available" theory as a possible ground for imposing liability. A more detailed understanding of the Kazaa technology is necessary and Plaintiffs may yet bring forth evidence of actual uploading and downloading of files, rendering use of the "making available" theory unnecessary."

* Available online at Internet Law & Regulation

Tuesday, July 18, 2006

RIAA Case Against Mother Dismissed With Prejudice; Court May Award Attorneys Fees Against RIAA

In Capitol Records v. Foster, in federal court in Oklahoma, a case against a mother -- whose only connection to the alleged filesharing was that she was the person who paid for the internet access -- has been dismissed with prejudice.

Faced with the mother's motion for leave to file a summary judgment motion dismissing the case against her, and awarding her attorneys fees, the RIAA made its own motion for permission to withdraw its case.

The Court granted the motion and let the RIAA drop its case.

The Court went on to hold that the defendant, Ms. Foster, is the "prevailing party" under the Copyright Act and is therefore eligible for an award of attorneys fees.

The Court then indicated that it would decide the attorneys fees award question upon receipt of a motion for attorneys fees.

July 13, 2006, Order Dismissing Case and Finding Defendant to be Eligible for Award of Attorneys Fees against Plaintiffs*

For background of the case see:
Amended Answer and Counterclaims*

* Document available online at Internet Law & Regulation

The attorney for Ms. Foster is Marilyn D. Barringer-Thomson, in Oklahoma City, Oklahoma.

Steve Gordon, a New York-based entertainment attorney, formerly in house counsel at SONY, and the author of the well known book on digital music "The Future of the Music Business", had this comment on Capitol v. Foster:

"This case demonstrates weakness in RIAA's cases in general. If they cannot back up their claims of infringement with legally required evidence, this could affect all their cases and encourage more defendants to fight back -- especially if, as in this case, the court awards attorneys fees for the defendant."

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