Wednesday, December 12, 2007

New Contested Case in Portland, Maine, Atlantic v. Lenentine

A new contested case is being fought in Portland, Maine, Atlantic v. Lenentine.

Defendant is being represented by Robert Mittel of Mittel Asen, located in Portland.


* Document published online at Internet Law & Regulation

Keywords: digital copyright online 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


Anonymous said...

I like the estoppel argument. The record companies glorify criminal behavior for the sake of their profits from sales about them, and now they complain about it.

And they might have included "Illegal Bundling" in their argument about copyright misuse, although I like how it's pointed out that many songs aren't even for sale new on a song-by-song basis that can be played on a PC. Can you really steal a song that the record company isn't selling at the time?

The only thing I felt was missing was the pointing out that the RIAA has completely failed to identify a specific computer, or the individual sitting at that computer at the time(s) in question. An IP address and a time-stamp identifies neither.


Art said...

I agree with QNX that they should have made a point in their affirmative defense that the plaintiffs HAVE NOT and CAN NOT identify the defendant based on their screen shots and IP addresses.

Here are some other good ones to add (if appropriate):
- no actual transfer/distribution has been or can be shown to have occurred.
- unnamed third parties are responsible for the infringement and have not been joined (sued the wrong person).
- plaintiffs have refused to negotiate settlement separately in good faith, in effect pooling their copyrights, and as such they have misused their copyright(s).
- plaintiffs can't show ownership of or rights to the works in question.
- plaintiffs can't show that they've paid the artists the fees and royalties due, therefore any copyright ownership rights fall to the artists and not the plaintiffs (no standing to bring suit).
- trespass to computer and defendant's privacy rights.
- RICO, antitrust, price fixing, etc.
- unlicensed investigators
- fair use, personal use
- no commercial benefit gained (as a mitigating factor)
- any screen shots taken or files downloaded by media sentry were copyrighted works of the defendant, and as such the plaintiffs have infringed defendant's copyright
- congress intended that statutory damages to be used for software piracy, and not music piracy, and as such are not applicable to the instant case
- DMCA Title II preempts 17 USC, and under Title II defendant is analogous to an ISP, and should have been given a notice of infringing material being made available. Plaintiffs failed to provide such notice, and as such their suit should be dismissed.
- DMCA Title IV exemptions related to libraries, distance education, and broadcasters apply to defendant.

I hope they can still ammend the response...


Art said...

By the way, here is how DMCA Title II defines a "service provider":
the term `service provider' means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received.

So doesn't this mean that any operator of a "digital media distribution system" is providing a service, and as such is a "service provider" under the DMCA? So wouldn't it follow that the ISP exemptions would potentially apply, at least in the context of an affirmative defense?