Recording Industry vs The People

Friday, March 21, 2008

Parties stipulate to treat royalty statements for SONY BMG's recordings as confidential in UMG v. Lindor

The parties have stipulated to treat as confidential the royalty statements SONY BMG is turning over to defendant's counsel in UMG v. Lindor.

These are part of the discovery into plaintiffs' expenses per download, ordered by the Magistrate Judge last November, which are needed in order to determine what actual damages, if any, plaintiff sustained.

Confidentiality stipulation for SONY BMG royalty reports*
Exhibit A to confidentiality stipulation for SONY BMG royalty reports*

* Document published online at Internet Law & Regulation

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 RIAA now tries to take depositions of additional relatives in Illinois and Connecticut

In UMG v. Lindor, the RIAA has served new subpoenas and deposition notices calling for depositions of additional relatives of the defendant, one residing in Illinois, one in Connecticut.

Ms. Lindor has moved to quash, terming the new subpoenas a "fishing expedition".

March 21, 2008, letter motion of Ray Beckerman to quash subpoenas for Illinois and Connecticut depositions*
Exhibit A - Deposition notices and subpoenas*
Exhibit B - Email exchange between Richard L. Gabriel and Ray Beckerman*

* Document published online at Internet Law & Regulation

Thursday, March 20, 2008

Dismissal motion in Cincinnati, Ohio, case, Elektra v. Licata, now fully briefed

In Elektra v. Licata, a Cincinnati, Ohio, case, the defendant's motion to dismiss complaint for failure to state a claim is now fully briefed, with the RIAA having filed opposition papers, and the defendant having filed his reply papers.

Plaintiffs' memorandum in opposition to motion to dismiss*
Defendant's reply memorandum in support of motion to dismiss*

* Document published online at Internet Law & Regulation

Why the Big 4 record labels are dead (updated article with corrected information about OurStage.com)

Note: this article was updated on 3/20/08 at 12:15 p.m., incorporating new information I just received in a comment from Jessica Morris. -R.B.

I know this is off-topic for this blog, but just wanted to share this thought with my readers.

I just attended a talk this morning at the Silicon Alley Breakfast Club, where one of the panelists was Jessica Morris of OurStage.com.

OurStage is a site which permits any musician or filmmaker to put his or her work on line, and have it exposed to the world at large (presently more than a milliion "uniques" per month) for competitive judging, commentary and feedback, the opportunity to win prizes and mentor opportunities, and other good reasons to post their work product.

I asked Jessica if musicians can sell their whole songs there, too. She said sure, it's 99 cents per download, of which the musician gets 80 percent... but she then wrote in and corrected herself: the artist actually gets all 99 cents -- or 100% -- of the total purchase price.

So any musician could go to OurStage.com, get free exposure for his or her music, and even sell his music to the public, receiving all of the purchase price.

And anyone who likes music can go there, listen to their heart's content, buy something if they like it, and be sure that what they spend goes right into the artist's pocket, where it belongs.

Four questions:

1. In such a world, who needs record companies?

2. If people don't need record companies, wouldn't record companies have to somehow make people want to do business with them?

3. Who thinks the RIAA's litigation campaign is a way of making musicians want to do business with the Big Four record companies?

4. Who thinks the RIAA's litigation campaign is a way of making music lovers want to buy their music from the Big Four record companies?

Anyone who can't figure out the rather obvious answers to those 4 questions, doesn't deserve to be running a record company. (Or should I say "running a record company into the ground")?

-R.B.

Nice article from Dow Jones MarketWatch

Good article from Dow Jones MarketWatch:

RIAA tactics to combat piracy again in question
Commentary: Recording association, Tony Soprano -- not much difference?
By Therese Poletti, MarketWatch
Last update: 12:01 a.m. EDT March 20, 2008

SAN FRANCISCO (MarketWatch) -- As any fan of "The Sopranos" knows, the mob often takes out its enemies in a gruesome fashion as a way to warn others to fall in line.

The same can be said of the campaign over the past four years instigated by the dreaded Recording Industry Association of America, more commonly known as the RIAA, which has been on a mission to stop or slow down the practice of illegal music downloading online.

Their special target, as most people know, has been college students, with some seeing their very education come under threat for what used to be a time-honored tradition -- copying their friends' music.

That copying, of course, has taken on a much larger scale with the Internet, which allows students to share songs and albums by the thousands -- often without paying a dime.

"This is a form of tough love," said Jonathan Lamy, a spokesman for the RIAA in Washington, which is made up of the biggest music industry labels. Last February, in an effort to step up the pace, the RIAA began sending "pre-lawsuit letters" to universities, which then forward them on to students associated with certain Internet accounts in question. The RIAA asks first for a few thousand dollars in payment and warns that the computer owner could face a federal lawsuit.

No room for negotiation

Much like the New York mob family in "The Sopranos," the RIAA is trying to send a blunt message -- that downloading free music using peer-to-peer networks could cost them dearly.

I don't condone music piracy, but the RIAA's tactics are nearly as bad as the actions of mobsters, real or fictional. The analogy comes up easily and frequently in any discussion of the RIAA's maneuvers.

Complete article

Commentary & discussion:

p2pnet.net
Slashdot
The Inquirer

Tuesday, March 18, 2008

RIAA asks judges to lift stays of discovery in "making available" dismissal cases, Elektra v. Barker and Warner v. Cassin

In both Elektra v. Barker and Warner v. Cassin, the two Southern District of New York cases in which motions to dismiss the complaint -- attacking the RIAA's "making available" theory and the lack of factual allegations of downloading and distributing-- are pending, the RIAA has sought to lift the stays of discovery which are now in effect, and has asked the judges to proceed with pretrial discovery, even though there has been no decision of either of the dismisal motions.

March 17, 2007, letter of Victor B. Kao to Hon. Kenneth M. Karas (Asking judge to lift stay of discovery in Elektra v. Barker)*
March 17, 2007, letter of Victor B. Kao to Hon. Stephen C. Robinson (Asking judge to lift stay of discovery in Warner v. Cassin)*

* Document published online at Internet Law & Regulation

Monday, March 17, 2008

Fireworks in Phoenix, several motions being fought out in Capitol v. Weed

In a Phoenix, Arizona, case, Capitol v. Weed, there are several key motions pending at this point:

-defendant's motion to dismiss the complaint; and
-defendant's motion for leave to interpose counterclaims.

Additionally, the parties were able to reach agreement on a stipulated protective order for an examination of the defendant's hard drive.

Motion to dismiss complaint*
Opposition papers*
Reply papers*
Supplemental authority submitted by defendant*
RIAA response to supplemental authority*
Motion for leave to interpose counterclaims*
Opposition papers*
Reply papers*
Stipulated protective order for examination of defendant's hard drive*

* Document published online at Internet Law & Regulation

Tallie Stubbs files appeal from denial of attorneys fees in Warner v. Stubbs

Tallie Stubbs has filed an appeal from the Court's denial of her motion for attorneys fees, in the Oklahoma City, Oklahoma, case, Warner v. Stubbs.

Ms. Stubbs is represented by Marilyn Barringer-Thomson, the Oklahoma City lawyer who obtained a $68,685.23 attorneys fee award against the RIAA in Capitol v. Foster.

Notice of Appeal*

* Document published online at Internet Law & Regulation

Practice tip: Rule 11 and the RIAA's new boilerplate

In its new boilerplate complaint (you know, the one it started using when Judge Brewster dismissed the old one in Interscope v. Rodriguez, 2007 WL 2408484) the RIAA makes the following allegation:

Plaintiffs identified an individual using LimeWire on the P2P network Gnutella at IP address 68.105.100.130 on October 2, 2005 at 05:21:57 distributing 330 audio files over the Internet. (emphasis added)

(Quotation from amended complaint in Interscope v. Rodriguez).

Meanwhile the RIAA's expert witness has conceded that plaintiffs did not identify an individual. See, e.g., transcript of February 23, 2007, deposition of Dr. Doug Jacobson in UMG v. Lindor, at

p 59 li 9 - p 60 li 12

p 85 ll 8-23

p 85 li 24 - p. 87 li 11

p 104 ll 6-11

p 145 ll 15-17

According to news accounts (no transcript has been prepared yet!) the same concession was made by Jennifer Pariser, SONY BMG's litigation chief, in her testimony during the Capitol v. Thomas trial.

So I have 2 questions:

1. Can someone out there give me a good reason why the allegation in the new complaint that plaintiffs "identified an individual", which the plaintiffs and their counsel have repeated in thousands of complaints since October 2007, and which their witnesses have admitted is untrue, is not a flagrant violation of Fed. R. Civ. P. 11?

2. Can someone out there give me a good reason why a Rule 11 motion should not be one of the first things on the "to do" list of a defendant's lawyer in a new RIAA case?

-R.B.

Sunday, March 16, 2008

A word to the press: fight for the public's right to know

This is an open letter to the representatives of the press.

Now that the class action against the nefarious practices of the RIAA and its investigators, collectors, and big 4 record companies, Andersen v. Atlantic is about to begin in earnest, as pretrial discovery gets underway, it is predictable that:

1. The defendants' lawyers will stonewall to the maximum extent possible, and will fight for extraordinary gag orders and confidentiality orders on EVERYTHING learned in the discovery process; and

2. Their reason for doing so will be to keep the information from becoming public knowledge and to keep the lawyers for the defendants in the copyright infringement cases from getting their hands on that information, since it will support affirmative defenses and counterclaims, and otherwise complicate the RIAA's oppressive litigations.

It is up to you, the press, to fight for the First Amendment and the public's right to know.

The plaintiffs' lawyers will not be able to do that and will be under pressure to agree to stipulations and the like.

You and your employer's attorneys should be monitoring the Atlantic v. Andersen case closely, and when the RIAA starts playing its 'secrecy games', even if the plaintiffs' lawyers are forced to agree to secrecy, it is imperative that you go into court and represent the right of the people to have access to judicial proceedings.

If you do not do it, no one else will. And if you do not do it, you will have nothing to report on.

-R.B.

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