Motion to sever & quash denied in Philadelphia case, Malibu Media v John Does 1-6

In a Philadelphia case, Malibu Media v. John Does 1-6, the Court has denied a defendant's motion to sever and quash.

Order denying motion to sever and quash, December 24, 2012, Hon. Cynthia M. Rufe


Ray Beckerman, PC

EFF: "Tough Times for Trolls and their "Copyright Negligence" Scheme"

Interesting article by Mitch Stoltz of Electronic Frontier Foundation:

Tough Times for Trolls and their "Copyright Negligence" Scheme

Despite at least five smackdowns by federal judges, copyright trolls are still accusing Internet subscribers of "negligently" allowing someone else to download porn films without paying. Last week, subpoena defense attorney Morgan Pietz fought back by asking the Northern California federal courts to put all of the open "negligence" cases filed by a prolific troll firm in front of a single judge - a judge who already ruled that the "negligence" theory is bogus.

Complete article





Ray Beckerman, PC

TechDirt: "RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation"

Interesting article by Mike Masnick of TechDirt:

RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation

from the must-pay-well dept

Over the last week or so, I've seen a number of folks in the usual crowd of copyright maximalists cheering on a new "paper" put forth by a group hilariously calling itself the Center for Individual Freedom, supposedly trying to establish the "constitutional and historical foundations of copyright protection." The "paper" (and I use that term loosely) itself does no such thing. It's a one-sided polemic about why copyright is property -- argued by selectively quoting a few historical claims, often out of context, and ignoring everything else. The six page document (quick read) was actually written by three lawyers... who admit that they work for the RIAA. The basic argument is that copyright is a "natural right," and that this idea was well established at the time of the Constitution. The framing, then, is that all the Constitution was really doing was codifying a natural right that all agreed was akin to property, and that this right cannot and should not be diminished or taken away.

To do this, the authors rely, almost exclusively, on some arguments that John Locke made. This is the go to move of copyright maximalists. Because John Locke argued that property rights were established as a result of one's labor, and thus a "natural right", and some of the founders were influenced by John Locke, voila, copyright was meant to be given as a natural right. As the paper notes:

The foundational premise of Locke's theory is that all people have a natural right of property in their own bodies. Because people own their bodies, Locke reasoned that they also owned the labor of their bodies and, by extension, the fruits of that labor. When an individual catches a fish in a stream, he has a right to keep that fish because but-for his efforts, the fish would not have been caught. For the same reason, an author has a right to his works because his efforts made the work possible. Under Locke’s view, "[o]ur handiwork becomes our property because our hands—and the energy, consciousness, and control that fuel their labor--are our property."

That is, "a person rightly claims ownership in her works to the extent that her labor resulted in their existence." If anything, under Locke's theory, intellectual property should be even more worthy of protection than physical property. Land and natural resources are pre-existing and finite, and one person's acquisition of a piece of tangible property may reduce the "common" that is available to others. Not so with tangible expressions: the field of creative works is infinite, and one person's expression of an idea does not meaningfully deplete the opportunities available to others; indeed, it expands the size of the "pie" by providing inspiration to others. Moreover, while tangible property such as land and chattel is often pre-existing and acquired through mere happenstance of birth, intellectual property flows directly from its creator and is essentially the "propertization of talent"--that is, "a reward, an empowering instrument, for the talented upstarts" in a society.

Nearly all of this is misleading or out of context. Or just wrong.....

Complete article





Ray Beckerman, PC

Indiana plaintiff's counsel violates order to file amended complaint under seal; moves to strike

In an Indiana case, Malibu Media v. Does 1-14, plaintiff's counsel violated the Court's order to file the amended complaint under seal, thus disclosing the identities of the named defendants in public records. He has now moved to strike his amended complaint.

Plaintiff's motion to strike his amended complaint

Ray Beckerman, PC

Jammie Thomas-Rasset files petition for certiorari in US Sup Ct

In Capitol Records v. Thomas-Rasset, Jammie Thomas-Rasset has filed a petition for certiorari with the United States Supreme Court, arguing that the 8th Circuit Court of Appeal's statutory damages award of $220,000 for downloading 24 mp3 song files was a violation of Due Process under State Farm v. Campbell, BMW v. Gore, and St. Louis I.M. & S. Railway Co. v. Williams.

Petition for certiorari

Commentary & discussion:

Slashdot


Ray Beckerman, PC

Severance & dismissal granted in Tampa case, Malibu Media v Does 1-28 #law

Hat tip to Cynthia Conlin, Esq.:

In a Tampa, Florida, case, Malibu Media v. Does 1-28, District Judge James D. Whittemore has severed and dismissed as to Does 2-28.

December 6, 2012, order and decision severing and dismissing as to Does 2-28, Hon. James D. Whittemore, US District Judge


Ray Beckerman, PC

Doe's motion to proceed anonymously granted in In re BitTorrent

In In re BitTorrent Adult Film Copyright Infringement Cases, defendant Doe 1's motion for leave to continue to proceed anonymously was granted.

December 3, 2012, Decision, Hon. Gary R. Brown, U.S. Magistrate Judge

Ray Beckerman, PC

Florida case involving Prenda lawyers dismissed for attempted fraud upon the Court

In a Tampa, Florida, case, Sunlust Pictures v. Nguyen, the Court dismissed the case for several reasons, including attempted fraud upon the Court. The Court held:

The case is dismissed for failure to appear at this hearing, for failure to present a lawful agent, for attempted fraud on the Court by offering up a person who has no authority to act on behalf of the corporation as its corporate representative, and the Court will hear, by motion, a motion for sanctions and fees against this Sunlust entity and everyone affiliated with it, including a motion against Mr. Wasinger for his purposeful failure to appear at this hearing.

And a motion will also be heard on Mr. Duffy for his lack of candor in relation to his connection with this matter based upon the representation of Mr. Torres that he was contacted by the Prenda Law Group or Prenda Law, Inc. for the purpose of being retained as local counsel in this case and that was not presented to the Court in this purported correspondence. The case is dismissed.

I intend to advise the other Judges in the Courthouse of the nature of this matter and may refer this matter to the Florida Bar for further proceedings.

Transcript of November 27th hearing.pdf

Ray Beckerman, PC

Judge orders plaintiff's counsel to explain whether he entered into settlement in violation of court order

In Combat Zone v. Does 1-84, a Boston, Massachusetts, case, Magistrate Judge Jennifer C. Boal has ordered plaintiff's counsel to submit a statement explaining whether he has entered into a settlement with a defendant in violation of the Court's previously issued order directing him not to enter into any settlements.

November 26, 2012, Order of Magistrate Judge Jennifer C. Boal directing plaintiff's counsel to submit explanation


Ray Beckerman, PC

Judge Spatt upholds all of Magistrate Brown's findings in In re BitTorrent

In a Central Islip case, Patrick Collins Inc. v. Doe 1, District Judge Arthur D. Spatt has upheld all of the findings and conclusions of Magistrate Judge Gary R. Brown (PDF), in In re BitTorrent Adult Film Copyright Infringement Cases, agreeing that

an IP address alone is insufficient to establish “a reasonable likelihood [that] it will lead to the identity of defendants who could be sued.” In re BitTorrent, 2012 WL 1570765, at *7. Judge Brown noted that an IP address only points to the internet account in question, and “[a]s a result, a single IP address usually supports multiple computer devices—which unlike traditional telephones can be operated simultaneously by different individuals.” Id. at *3 (citing U.S. v. Latham, No. 06-CR-379, 2007 WL 4563459, at *4 (D. Nev. Dec. 18, 2007)). Due to the prevalence of wireless routers, the actual device that performed the allegedly infringing activity could have been owned by a relative or guest of the account owner, or even an interloper without the knowledge of the owner.

Judge Spatt noted that

a simple internet search reveals that detailed instructions are widely available that would allow anyone with only a moderate degree of computer knowledge to “hack” any wireless network that uses this feature, using almost any modern laptop. Furthermore, at least one website offers a $99 kit that gives the same capability to any user with even the most basic knowledge of computers. Many routers also use a security method known as Wired Equivalent Privacy (“WEP”), which the FBI warns has its own share of exploitable vulnerabilities. Federal Bureau of Investigation, Got a Wireless Network? It’s Time to Shore Up Security (May 4, 2007) available at http://www.fbi.gov/news/stories/2007/may/wireless_050407.

If the Court were to hold internet account holders responsible for any interlopers and guests who might infringe on the Plaintiff’s work, the Court would essentially be imposing a duty that every home internet user vigilantly guard their wireless network. The Court declines to impose such a duty. See AF Holdings, LLC v. Doe, No. 12-CV-2049, 2012 WL 3835102, at *3 (N.D. Cal. Sep. 5, 2012) (“AF Holdings has not articulated any basis for imposing on Hatfield a legal duty to prevent the infringement of AF Holdings’ copyrighted works [by securing his wireless network], and the court is aware of none.”).

Judge Spatt concluded "that the Plaintiff failed to establish a reasonable likelihood that the discovery requested would lead to the identity of the Defendants who could be sued."

Judge Spatt likewise agreed with Magistrate Judge Brown that there was no basis for joinder in these cases, under the Federal Rules.

November 20, 2012, decision of Hon. Arthur D. Spatt, District Judge


Ray Beckerman, PC