Recording Industry vs The People

Sunday, January 25, 2009

Another copyright law blogger quits, this one citing, as a reason, the RIAA's lawsuits against ordinary people

Keith Henning, a Little Rock, Arkansas, attorney who has been publishing a copyright blog called "copywrite.org", wrote a post in October in which he announced the end of of his blog.

He gave four reasons for his decision, the first three of which echoed those given by Bill Patry when he closed his blog.

The fourth reason Keith gave was this one:

4. It is really depressing. The phone calls I get are the worst. On average, I receive about one phone call every other day from someone being sued for file-sharing music. I have my response memorized. There is no good news for (usually parents of) someone getting sued by RIAA, et, al. I believe that given the right case I could win. I have a dozen arguments against these suits and a complete plan of attack ready, starting with having the record company prove they are the rightful holder of rights, that each file contained both what it purported to be and that it was a enough to be infringing, that the sharing does not equal distribution, that the collection of information equaled unlicensed private investigation, that the collection of information was without permission and equals hacking, abuse of process, etc. However, no person with anything to lose would do anything but write the $4-5k check and go on with their lives. The sadness in their voices pains me. This is the reason I didn’t do criminal law or family law or even personal tax law. I love the law, I don’t like the messiness of peoples lives. I really love IP law. If someone would give me a full time IP law teaching gig, I would likely die in that job. However, I really can’t take anymore of these calls from people being hijacked by record companies for (what is usually) their life savings, or more.

Complete article.

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Friday, January 23, 2009

Atlantic Recording v. Boyer, Florida case in which sufficiency of counterclaims had been upheld, has been settled

We have just learned that Atlantic Recording v. Boyer, the Tampa, Florida, case in which the legal sufficiency of defendant's counterclaims for conspiracy to commit extortion, illegal investigations, and computer fraud, computer fraud and abuse, trespass, deceptive and unfair trade practices, declaratory judgment of noninfringement, and abuse of process had been upheld, was settled on December 1, 2008.

Notice of Settlement
December 1, 2008, order

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Thursday, January 22, 2009

RIAA threatens Prof. Nesson with Rule 11 sanctions, then opposes motion to compel Matthew Oppenheim deposition in SONY BMG Music v. Tenenbaum

In SONY BMG Music v. Tenenbaum, the RIAA has filed its papers opposing the defendant's motion to compel the deposition of Matthew J. Oppenheim and requested that the Court award monetary sanctions under Fed. R. Civ. P. 37.

Attached to the papers is a January 21, 2009, letter in which Timothy M. Reynolds threatened Prof. Nesson with Rule 11 or Rule 37 sanctions.

Plaintiffs' Response to Defendant's Motion to Compel Deposition of Matthew J. Oppenheim
Exhibit A -- January 21, 2009, Letter of Timothy M. Reynolds Threatening Rule 11 Sanctions

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Video about Tenenbaum case

Here is a video on NECN.com about SONY BMG Music v. Tenenbaum.

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Wednesday, January 21, 2009

Appeals court sets briefing scheduled fot IPTV motion in SONY BMG Music v. Tenenbaum; amicus briefs must be filed by Jan 29 at 3 pm

In SONY BMG Music v. Tenenbaum, the US Court of Appeals for the First Circuit has established a briefing schedule for the RIAA's petition for "mandamus and prohibition", and has ruled that amicus curiae briefs must be filed by 3:00 PM on January 29th.

January 21, 2009, order fixing briefing schedule

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Correction: Obama apparently did not attend RIAA ball

Thanks to Ben Sheffner for pointing out that my previous report, that the RIAA's "inaugural ball" was attended by the Obamas, appears to have been incorrect.

Apparently the Obamas attended official balls only, and did not visit lobbyist-run events.

I guess the RIAA's calling it an "inaugural ball" was just another attempt to (a) curry favor for its monopolistic practices and/or (b) misstate the facts.

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Defendant not required at this time to file opposition papers to RIAA's First Circuit petition

According to the case opening notice issued by the United States Court of Appeals for the First Circuit in SONY BMG Music v. Tenenbaum, the defendant is not required to file papers opposing the RIAA's petition for "mandamus or prohibition" unless the Court orders him to.

Case Opening Notice

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Tuesday, January 20, 2009

Televised Hearing Adjourned to February 24th, Judge says RIAA objections relate not to "Whether" but "How" Hearing Should be Televised

In SONY BMG Music v. Tenenbaum, District Judge Nancy Gertner issued an order in which she:

-adjourned the oral argument which had been scheduled for January 22nd, which she had ruled could be televised over the internet, to February 24th, in order to give the appeals court time to fully consider plaintiffs' petition for mandamus or prohibition

-noted that Plaintiffs' petition for mandamus or prohibition raised arguments they had not made in the District Court, and

-noted that the thrust of Plaintiffs' petition related not to "whether" the proceedings should be televised, but "how"

January 20, 2009, Order Adjourning Argument to February 24th

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Tenenbaum moves to compel Matthew Oppenheim to appear for deposition

In SONY BMG Music v. Tenenbaum, the defendant has moved to compel Matthew J. Oppenheim to appear for his deposition.

Mr. Oppenheim is the person who has been identified by the RIAA lawyers sometimes as the "client", sometimes as the "industry representative", and sometimes as the "client representative", and on at least one occasion as "the only person who had settlement authority" for the RIAA members. He claims to be associated with an entity called "The Oppenheim Group", and has acted as attorney of record for the record companies in several proceedings in Washington, D.C.

He sat at the counsel table in Capitol v. Thomas, where he was observed at one point, by the on-scene reporter from Ars Technica, to be reading "Recording Industry vs. The People" on his laptop during the trial.

He intervened on MediaSentry's behalf in the investigative proceedings which have been taking place in North Carolina, looking into MediaSentry's having engaged in investigation of North Carolina residents without an investigator's license.

Motion to Depose Matthew Oppenheim
Memorandum of Law in Support of Motion

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Defendant does not oppose RIAA district court motion for stay in SONY BMG Music v. Tenenbaum

In SONY BMG Music v. Tenenbaum, the defendant has not opposed the RIAA's motion for a stay of the January 22nd oral argument, and has indicated it will defer to the judgment of the Court on that subject.

Defendant's Response to RIAA Motion for Stay

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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