Recording Industry vs The People

Friday, November 21, 2008

RIAA's request for extension of time granted in UMG Recordings v. Lindor

The RIAA's request for extension of time in which to serve its (a) reply papers in support of its motion for "discovery sanctions" and dismissal without prejudice, and (b) papers in opposition to defendant's Rule 11 motion in UMG Recordings v. Lindor has been granted.

They now have until December 4th to serve both sets of papers.

November 21, 2008, Order of Magistrate Judge Hon. Robert M. Levy Granting Plaintiffs' Request for Extension of Time

Keywords: lawyer 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 portable music player

Thursday, November 20, 2008

New RICO class action claims asserted against RIAA in St. Louis in Atlantic Recording v. Raleigh

In Atlantic Recording v. Raleigh, a St. Louis, Missouri, case in which the Court dismissed defendant's counterclaims in August, new, more detailed, amended class action counterclaims have been filed, alleging claims for:

-RICO
-Fraud
-Conspiracy
-Trespass
-Prima Facie Tort
-violation of the Computer Fraud & Abuse Act.

The amended counterclaims specifically reference Capitol Records v. Foster and several other cases.

The predicate acts for the RICO count were extortion, mail fraud, and wire fraud.

The class on behalf of whom the claims are asserted is all persons residing in the United States who:

a. were falsely accused by Counterclaim Defendants and RIAA of downloading copyrighted sound recordings owned by the ounterclaim Defendants and making them available for distribution or mass distribution over a P2P network and who incurred costs and damages including legal fees in defense of such false claims; and/or

b. whose computers used in interstate commerce and/or communication were accessed by Counterclaim Defendants without permission or authority through conduct involving interstate communication and from which information was obtained in violation of such person’s rights within two years prior to the date of the filing of this amended counterclaim.

Amended Answer and Counterclaims

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First shot fired. Big movie cartel goes after small Australian ISP; has the war against ISP's begun?

We have learned that the Australian counterpart of the MPAA has filed a lawsuit against a small Australian ISP, perhaps as a warm-up for a war -- by Big Music and Big Film -- against ISP's in general.

The larger Australian film studios have ganged up against iinet, an Australian ISP which holds 5% of the market.

The action was filed jointly by a group of supposed 'competitors' -- Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network (free to air tv channel).

http://www.afact.org.au/pressreleases/AFACT_Media_Release_201108_iiNet.pdf

It is rumored that they went after a small ISP and would not dare to take on the might of Telstra, Australia's largest ISP, www.bigpond.com, which would be better equipped for litigation, having a large litigation team.

The court documents are available here

iinet had this (pdf) to say about it, and has a forum in which to discuss the suit.

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Pizza Hut teams up with Indie Music source, eMusic

We were thrilled to see Pizza Hut teaming up eMusic, the great indie music source.

We learned through one of the ads placed by Google AdSense that people who order online from Pizza Hut can join eMusic and get 75 free MP3's!

[Ed. note. Hmmmm. I guess Pizza Hut has some forward-looking folks in management, who realize that the future is with independent music, not with the four big -- but rapidly shrinking -- dinosaurs who can't think of anything better to do with the internet than use it as a means of bringing automated lawsuits, manned by an army of unemployable clones, against (a) their best customers or (b) innocent people. I.e Pizza Hut is teaming up with the people who are really about music, not about corporate monopoly. -R.B.]

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Wednesday, November 19, 2008

Tenenbaum plans to call as trial witnesses Johan Pouwelse, Lawrence Lessig, Jonathan Zittrain, John Perry Barlow, and others

In SONY BMG Music v. Tenenbaum, the defendant's witness includes, among others:

-John Perry Barlow (former songwriter for The Grateful Dead)

-Prof. Johan Pouwelse (technical and scientific director of European research project P2P-Next)

-Prof. Lawrence Lessig

-Matthew Oppenheim

-Prof. Terry Fisher

-Prof. Wendy Seltzer

-Prof. John Palfrey

-Prof. Jonathan Zittrain

-Andrew Grant (former antipiracy specialist at Macrovision)

Defendant's PreTrial Memorandum

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SONY BMG Music v Tenenbaum trial adjourned to March 30, 2009

In SONY BMG Music v. Tenenbaum, the trial -- scheduled for December 1st -- has been rescheduled for March 30, 2009.

The docket entry is as follows:

Electronic Clerk's Notes for proceedings held before Judge Nancy Gertner: 11/18/09 Status Conference/Hearing held on scheduling matters re: Defendant JOEL TENEBAUM. Counsel shall submit a Joint Discovery schedule by 11/24/08; if counsel are unable to agree to a discovery schedule, plf shall file a response by 12/3/08. Hearing on pending mtns set for 1/22/09 at 2:30-5:00. Jury Trial RESET TO 3/30/2009 09:00AM; Pretrial Conference RESET TO 3/24/2009 02:30 PM in Courtroom 2 before Judge Nancy Gertner. (Court Reporter: O"Hara.)(Attorneys present: Atty Nesson, Cloherty, Reynolds, Oppenheim)

Tuesday, November 18, 2008

RIAA asks for more time in UMG Recordings v. Lindor; defendant objects

In UMG Recordings v. Lindor, the RIAA has asked for more time to file its reply papers, in support of its motion for "discovery sanctions" and voluntary dismissal "without prejudice", to respond to Ms. Lindor's opposition papers, and for more time to file its opposition to Ms. Lindor's Rule 11 motion.

Defendant did not consent.

November 18, 2008, letter of Eve G. Burton to Hon. Robert M. Levy
November 18, 2008, letter of Ray Beckerman to Hon. Robert M. Levy

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Notice of Constitutional Question served and filed in SONY BMG Music v Tenenbaum

Defendant has served and filed his Notice of Constitutional Question in SONY BMG Music v. Tenenbaum

Notice of Constitutional Question

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RIAA's motion for adjournment of trial granted in SONY BMG Music v. Tenenbaum

The RIAA's motion to adjourn the December 1st jury trial scheduled in SONY BMG Music v. Tenenbaum was granted yesterday.

We do not yet know the new trial date that has been set.

A status conference was scheduled for today at 2:30 P.M.

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RIAA attempt to enter judgment for twice settlement amount rejected by Judge Gertner in Boston

In settling cases, the RIAA has an unusual practice of sometimes asking the defendant to agree to an immediate judgment for twice the actual settlement amount.

This practice was rejected on November 18th, in Boston, by Judge Gertner, in a case in which a defendant who was not represented by counsel signed such a settlement:

Judge Nancy Gertner: ELECTRONIC ORDER entered re Stipulation To Judgment and Permanent Injunction filed by All Plaintiffs as to defendant LaShaana Straw. "The parties' Stipulation to Judgment is DENIED. Plaintiffs request that the Court approve a Stipulation requiring the Defendant to pay $10,700, yet state in their Response that they have agreed to accept half that amount, $5,350, in full satisfaction of the monetary portion of the proposed judgment. The Plaintiffs do not provide any reason for this highly unusual arrangement, and the Court will not approve a stipulation which fails reflect the actual terms of the agreement. The Plaintiffs must present to the Court a proposed judgment which accurately states the amount the Defendant will be required to pay to settle the claims."

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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