Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.
In Elektra v. Barker, Warner v. Cassin, and Elektra v. Schwartz, three New York metropolitan area cases in which the defendants are represented by Vandenberg & Feliu and in which there are pending motions to dismiss the complaint for failure to state a claim under the copyright laws, defense counsel have sent the respective judges in those cases copies of the decision of Hon. Janet Bond Arterton of the District Court of Connecticut in Atlantic v. Brennan, holding that the RIAA complaint fails to state a claim.
Keywords: 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
In Atlantic v. Brennan, a New Haven, Connecticut, case, the Court has denied the RIAA's application for default judgment, rejecting the RIAA's "making available" theory.
The February 13, 2008, decision of District Judge Janet Bond Arterton holds, among other things, that the complaint is insufficient, both because
"“without actual distribution of copies.... there is no violation [of] the distribution right.” 4 William F. Patry, Patry on Copyright § 13:9 (2007); see also id. N. 10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)(affirming the district court’s finding “that distribution requires an ‘actual dissemination’ of a copy”)"
and because the balance of the complaint fails to satisfy the pleading standards of Bell Atlantic v. Twombly, – U.S. –, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007), and would not survive a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), agreeing with Interscope v. Rodriguez, 2007 WL 2408484 (S. D. Cal. August 17, 2007).
Additionally, the Court held that the defendant had numerous other possible defenses:;
In other similar cases brought by these Plaintiffs and other record labels, individual defendants have raised a host of colorable defenses; but due to the varying procedural postures, the viability of these defenses has largely yet to be conclusively determined. The defenses which have possible merit include: (1) whether the amount of statutory damages available under the Copyright Act, measured against the actual money damages suffered, is unconstitutionally excessive, see UMG Recordings, Inc. v. Lindor, No. 05-1095, 2006 WL 3335048, at *3(E.D.N.Y.2006) (finding the defense non-frivolous); Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 588 (6th Cir.2007) (rejecting the defense as to a 44:1 damages ratio); see generally Blaine Evanson, Due Process in Statutory Damages, 3 Geo. J.L. & Pub. Pol'y 601, 637 (2005); FN2 and (2) whether the Plaintiffs and their recording industry peers, by bringing infringement suits like this one, have engaged in anticompetitive behavior constituting copyright misuse, see Lava Records LLC v. Amurao, No. 07-321 (S.D.N.Y. Jan. 16, 2007) (motion to dismiss copyright misuse counterclaim pending); Assessment Techs. of WI, LLC, v. WIREdata, Inc., 350 F.3d 640, 647 (7th Cir.2003) ("The doctrine of misuse prevents copyright holders from leveraging their limited monopoly to allow them control of areas outside the monopoly .") (quotation marks omitted).
Keywords: 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
We came across a helpful Seventh Circuit decision reversing a district court's denial of attorneys fees, where the plaintiff had moved to voluntarily dismiss its copyright infringement case. The court in Rivera v. Jones reaffirmed the principles that (a) notwithstanding the voluntariness of the plaintiff's dismissal the defendant is a "prevailing party", (b) the defendant in such cases is presumptively entitled to attorneys fees, and (c) the defendant is not required to establish frivolousness on the part of the plaintiffs.
Keywords: 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
We have obtained what appears to be an unofficial transcript of the February 13, 2008, oral argument, referred to by the Judge in her decision dismissing the complaint with leave to replead, in Andersen v. Atlantic.
Keywords: 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
In Panorama v. Zomba, a case challenging as unconstitutional an award of statutory damages in an amount that is 44 times the amount of actual damages, a petition for certiorari to the United States Supreme Court has been filed.
[Ed. note. By comparison, the award in Capitol v. Thomas, where a motion to set aside the verdict is pending, was approximately 23,000 times the actual damages. -R.B.]
Keywords: 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
In UMG v. Lindor, for the first time in any RIAA case of which we are aware, Marie Lindor has served an expert witness report critiquing the RIAA's expert witness, Dr. Doug Jacobson.
-there are certain procedures needed to be taken in order to establish if a certain computer is being used to make copyrighted works available for download, which steps were not taken; -the RIAA's expert witness's work lacked "in-depth analysis" and "proper scientific scrutiny"; -the reports were "factually erroneous"; -statements in Jacobson's report were contradicted by his deposition testimony; -numerous institutions have received false claims by MediaSentry; -MediaSentry's techniques have never been properly tested, are overly simplistic, and fail the test for accurate peer to peer file sharing measurement; -Verizon's response to the record companies' subpoena demonstrates that the subpoena used to identify Ms. Lindor's account was flawed; -the lack of hard drive evidence corroborating the MediaSentry claim further demonstrates the unfounded nature of Jacobson's conclusions; -no alternative explanations were investigated; -no checks were conducted to determine a potential rate of error; -no standards or controls exist; -Jacobson's methods are "self-developed" and "unpublished"; -Jacobson's methods are not peer reviewed and not accepted by the scientific community; and -Jacobson's investigative process was "unprofessional".
The report concluded that the Jacobson reports demonstrated "borderline incompetence" and that the "allegations of copyright violations are not proven".
Keywords: 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
To contribute to Marie Lindor's legal defense, see below.
The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.
In Elektra v. Santangelo II, the White Plains, New York, case against two of Patti Santangelo's children, the Magistrate Judge has denied the defendants' motion for permission to bring a third-party action against AOL, Kazaa, and the boy who installed Kazaa on their computer.
Keywords: 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
Once again, thanks to Tony Green of The Oregonian, for alerting us to this:
In Andersen v. Atlantic, the class action pending in Portland, Oregon, the Court has dismissed the complaint, but granted plaintiff Tanya Andersen leave to replead.
Keywords: 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
In Arista v. Does 1-21, the case targeting students at Boston University, the RIAA has filed further papers responding to the supplemental papers filed by the students and the amicus curiae brief submitted by the Electronic Frontier Foundation.
Their new papers
-admit that MediaSentry received a cease and desist letter from the Massachusetts state police;
-argue that MediaSentry was not violating Massachusetts law;
-argue that "making available" is a copyright infringement, despite the absence of any reference to it in the Copyright Act; and
-characterize the articles cited by the students in their briefs as "vitriolic blog postings of disgruntled individuals and a handful of commentators".
[Ed. note. To the extent that the last comment was directed at "Recording Industry v. The People", I would like to make the following clarifications: (a) I confess that "vitriolic" is a good word to use to describe the feelings I have towards the unprofessional behavior of the RIAA attorneys. "Detest", "contemptuous", "outraged", "appalled", "repulsed", and "sickened" also come to mind. (b) However, I am not "disgruntled". I will be "disgruntled" only if the Courts ultimately buy the voodoo legal theories and the fabricated, mislabelled, illegally procured, and doctored "evidence" the RIAA lawyers are attempting to peddle. So far the RIAA has won only one fully contested case, and that case is not over. I expect Mr. Gabriel, Mr. Oppenheim, and their similarly unprincipled lackeys to be the "disgruntled" ones, when the dust settles. And I anticipate that the MediaSentry people will feel "disgruntled" when they wind up behind bars along with their now "former" CFO, which appears likely in view of the recent revelations that they have been conducting investigations without a license, and are presently attempting to deceive the Massachusetts law enforcement authorities as to the nature of their activities on behalf of the RIAA and the record companies. I don't think their ex post facto tampering with the language on their web pages would exonerate them in the eyes of most prosecutors I've met. -R.B."]
We note that the RIAA's brief responding to the John Does' brief cited a New York State Attorney General's Opinion from 1919, but did not annex a copy of the Attorney General's Opinion, which is most unusual, since these are not readily available to the Judge, as published statutes and cases would be. Accordingly we have obtained a copy of the actual opinion (1919 Opinions of Attorney General 256* (November 10, 1919)), which opines on a very different, much narrower, version of the statute than the one in effect today (General Business Law Sec. 70, 71).
Keywords: 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
We just came across this report on Dow Jones Marketwatch:
DOJ: Former SafeNet [a/k/a MediaSentry] Executive Gets 6 Months Prison, $1M Fine By Saba Ali Last update: 12:34 p.m. EST Jan. 28, 2008 SafeNet Inc.'s former chief financial officer, Carole Argo, was sentenced Monday to six months in prison and a $1 million fine for her participation in a scheme to backdate stock options, said Michael Garcia, the U.S. Attorney for the Southern District of New York. Argo pleaded guilty on Oct. 5 to one count of securities fraud. SafeNet, a Maryland software information security product and services provider, had said in a story published in October that Argo resigned as a result of an internal investigation into the company's stock-options grant practices.
Keywords: 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
