Recording Industry vs The People

Saturday, May 17, 2008

MediaSentry lawyers write to State Police, saying MediaSentry doesn't need a license

In Arista v. Does 1-21 (renamed London-Sire v. Doe 1), "John Doe" has annexed as an exhibit to some motion papers on a procedural point, a copy of a letter written to the State Police on behalf of MediaSentry.

Request for leave to file reply nunc pro tunc with exhibit A (MediaSentry "investigative" web page) and exhibit B (letter to State Police)*

* 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 Boston University case, "John Doe" serves supboena on state police about MediaSentry

In Arista v. Does 1-21 (renamed London-Sire v. Doe 1), the case targeting Boston University students in which students have raised the illegality of MediaSentry's unlicensed investigation, the students served a subpoena on the State Police, who on January 2nd issued an order to MediaSentry to cease and desist.

The RIAA has moved to quash the subpoena.

RIAA motion to quash subpoena served on Massachusetts State Police*

* Document published online at Internet Law & Regulation

Friday, May 16, 2008

Magistrate holds that MediaSentry does not have to respond to subpoena in UMG v. Lindor

In UMG v. Lindor, the Magistrate Judge, Robert M. Levy, in a preliminary ruling, has held that MediaSentry does not have to respond to the subpoena duces tecum served upon it.

May 16, 2008, preliminary order of Hon. Robert M. Levy, Magistrate Judge, granting MediaSentry motion to quash and RIAA motion for protective order*

* Document published online at Internet Law & Regulation

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.

Tenise Barker to make reconsideration motion

In Elektra v. Barker, where Judge Karas rejected the RIAA's "making available" theory but suggested an alternate theory that would permit an infringement of the distribution right to be found where no copy had been disseminated, Tenise Barker is planning to make a motion for reconsideration based on recent caselaw contradicting the latter part of the March 31st decision.

May 16, 2008, Letter of Ray Beckerman to Hon. Richard J. Sullivan (re Reconsideration Motion)*

* Document published online at Internet Law & Regulation

Query to fellow practitioners: are we under an obligation to bring the May 15th order in Capitol v. Thomas to the attention of the Court?

Query to fellow practitioners:

The May 15th order entered yesterday in Capitol v. Thomas appears to indicate a knowing failure on the part of Holme Roberts & Owen to disclose to the Court contrary controlling authority, a duty which had been activated by defendant's counsel's failure to cite the case.

If this occurred, it would be a violation of the Disciplinary Rules. See, e.g. ABA Rules of Professional Conduct, Rule 3.3(a): “A lawyer shall not knowingly . . . (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel."

I do not know for a fact that this occurred, but

(a) I assume Judge Davis is correct in saying that Holme Roberts & Owen failed to disclose the National Car Rental case to the Court, and

(b) I do know for a fact that Holme Roberts & Owen was well aware of the case.

Question: In connection with the pro haec vice motions that Holme Roberts & Owen makes on a daily basis, are we, as attorneys, not obligated to bring the Capitol v. Thomas order to the attention of the Court?

I have resolved the question in the affirmative, and have notified the judge in two (2) cases in which pro haec vice motions by Holme Roberts & Owen are pending.

I would be interested in your input.

-R.B.

May 16, 2008, Letter of Ray Beckerman to Hon. David G. Trager and Hon. Robert M. Levy (Elektra v. Schwartz)(re pro haec vice motion and Capitol v. Thomas order)*
May 16, 2008, Letter of Ray Beckerman to Hon. David G. Trager and Hon. Robert M. Levy (UMG v. Lindor)(re pro haec vice motion and Capitol v. Thomas order)*

Thursday, May 15, 2008

Thanks to ZDNet for posting ABA Rule 3.3(a)

Thanks to ZDNet for posting ABA Rule 3.3(a). Richard Koman writes:

See ABA Rules of Professional Conduct, Rule 3.3(a): “A lawyer shall not knowingly . . . (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

Editorial comment: Questions which should be investigated concerning chronology of Atlantic v. Howell and Capitol v. Thomas

The initial, August 20, 2007, decision in Atlantic v. Howell, a pro se Arizona case, was vacated on September 27, 2007.

The RIAA lawyers had cited the initial decision to Judge Davis in Capitol v. Thomas.

The Thomas trial started on October 2, 2007.

On October 4th, there was oral argument in Capitol v. Thomas concerning the jury instructions to be given. Judge Davis wound up agreeing with the RIAA's argument, discarded the instruction he had originally decided to use, and accepted the improper instruction requested by Mr. Gabriel. And as everybody knows, a ludicrous jury verdict was the result.

So a period of seven (7) days had elapsed between the vacatur of the initial Howell decision and the oral argument and jury instruction.

I noted that day, in one blog post, that in two cases my office was handling -- Elektra v. Barker and Warner v. Cassin -- the RIAA's lawyers had "forgotten" to notify the respective judges that the Atlantic v. Howell decision which they had earlier brought to the attention of those judges had been vacated. I wondered, in another blog post, "if the RIAA lawyers ever brought it to the attention of Judge Davis that their favorite case, Atlantic v. Howell, was vacated."

Well I guess Judge Davis's new order answers my question.

They "forgot" to notify him as well.

Just as they "forgot" to notify him about the controlling contrary authority of the National Car Rental case.

Judge Davis seems to be under the misconception that it has been "since" vacated.... i.e. vacated AFTER the trial.

Wait 'til he finds out the truth.

-R.B.

Defendant brings Capitol v. Thomas order to attention of Judge Robinson in Warner v. Cassin

In Warner v. Cassin, the White Plains, New York, case in which a motion to dismiss the complaint, which challenges the RIAA's "making available" theory, is still pending, defendant's lawyers have brought to Judge Robinson's attention the order issued by Judge Davis in Capitol v. Thomas.

May 15, 2008, letter of Ray Beckerman to Hon Stephen C. Robinson (re Capitol v. Thomas and Atlantic v. Howell)*

* Document published online at Internet Law & Regulation

Judge in Capitol v. Thomas says "manifest error of law" may have been committed by incorrect "making available" instruction

In Capitol v. Thomas, the case in which the RIAA obtained a $222,000 jury award, District Judge Michael J. Davis has sua sponte issued an order stating that he believes he may have committed a "manifest error of law" by giving the jurors an incorrect jury instruction which accepted the RIAA's "making available" theory.

The judge stated that neither Ms. Thomas's lawyer, nor the RIAA's team of lawyers, had brought to the Court's attention the controlling opinion of the United States Court of Appeals for the Eighth Circuit, in National Car Rental System v. Computer Associates, which had held that there can be no infringement of the 17 USC 106(3) "distribution right" without actual dissemination of copies or phonorecords.

The judge also noted that the RIAA had relied upon the initial, August 20, 2007, decision in Atlantic v. Howell, which had been vacated on September 27, 2007, a week before the trial.

The judge has ordered the parties to file briefs, has invited amicus curiae briefs, and has scheduled oral argument for July 1st.

[Ed. note. If it is true that neither Mr. Toder nor Mr. Gabriel cited the National Car Rental case, then, in my professional opinion, Mr. Gabriel and those involved in briefing Capitol v. Thomas for the RIAA have breached their duty to bring to the Court's attention controlling contrary authorities. Certainly Mr. Gabriel was aware of the case, as it has been cited in numerous briefs which my office, and which other lawyers all across the country, have filed, in cases where the RIAA was seeking to foist its "making available" theory on the Court. Interestingly, the scheduled date of the oral argument, July 1st, is the same date that Mr. Gabriel starts his new job as a state court judge in Colorado, so that one of the other stormtroopers will have to face a very angry Judge Davis that day. -R.B.]

May 15, 2008, Order suggesting possible manifest error of law and calling for briefs and oral argument*

* Document published online at Internet Law & Regulation

Commentary & discussion:

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Motions to quash and to strike under submission in second University of Maine case, Atlantic v. Does 1-14

In the second "John Doe" case, targeting University of Maine students, Atlantic v. Does 1-14 the defendant's motion to quash and motion to strike the Linares declaration have now been fully submitted and are awaiting decision.

RIAA opposition memo*
Defendant's reply memo*

* Document published online at Internet Law & Regulation

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