Recording Industry vs The People: RIAA sues Project Playlist for copyright infringement in Manhattan; copy of complaint available online

Wednesday, April 30, 2008

RIAA sues Project Playlist for copyright infringement in Manhattan; copy of complaint available online

The RIAA's copyright lawsuit against Project Playlist, Atlantic v. Project Playlist, was filed in Manhattan on April 28th. A copy of the complaint is now available online.

Complaint*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net

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

7 comments:

Anonymous said...: Looking at the complaint as a civilian (non-attorney), it seems to have less hyperbole than what we have seen from the RIAA to date.

This should be an intersting case.

Kip Patterson; April 30, 2008 at 3:14:00 PM EDT
raybeckerman said...: Speaking as a lawyer I would say that it's got quite a lot of hyperbole.; April 30, 2008 at 4:24:00 PM EDT
Anonymous said...: Is not this filing in the wrong district?

The complaint on page 7 admits Project Playlist is in California. Should not this complaint be filed there? They allege their ad broker is in New York, but they have not named them as a defendant. The WHOIS info for the domain shows a Washington State address. Looks like they want to use New York Law on a non-NewYork person. I did not see any statement that the company actually has a presence in New York. They did attract New York people to use their site, but they also I am sure attract people from the other 49 states, and all the countries of the world as well.

Also curious if this action has been handed to the same 2 judges that have done all the other cases in that district, by checking that "related case" box.

The service promotes itself on its website as "an online community where 24,602,542 music fans create and share music playlists". Since that simple statement makes it clear that the site is nothing more then a type of search engine, looks to me that they are no more of an infringer than Google.

ATLANTIC RECORDING CORPORATION,
CAPITOL RECORDS, LLC; ELEKTRA ENTERTAINMENT GROUP INC.;
INTERSCOPE RECORDS; MOTOWN RECORD
COMPANY, L.P.; PRIORITY RECORDS LLC;
UMG RECORDINGS, INC.; VIRGIN RECORDS AMERICA, INC.;AND WARNER BROS. RECORDS INC., are suing in effect a search engine. I also suspect that most of the 24,602,542 sites are also pointing their guests elseware for the actual music. Since most of the music in these playlists are actually hosted in countries such as Russia where American law does not apply, and since it is now clear that an "Actual Distribution" must occur for infringement to happen. I would hope for a fast summary dismissal of this action.

A basic check of the public IP information would reveal to these plaintiffs that the actual physical servers that host this site are right here in the Middle District of Florida (Kissimmee/Orlando), NOT New York or California. This information is exactly the same information they use in their other cases to determine which ISP to send their Subpoena to, so they cannot claim lack of experence with this process.

I guess they chose to file in New York, as they have already lost here in the Middle District of Florida, when it was ordered that they would have to sever and pay filing fees for each of their information harvesting lawsuits that were filed here. The RIAA has a bad record in this district.

Albert; April 30, 2008 at 4:26:00 PM EDT
James said...: If hyperbole was oil, the RIAA'd be sitting on a gold mine and wouldn't have to sue people and lie through their teeth to make a profit.; April 30, 2008 at 4:29:00 PM EDT
Alter_Fritz said...: Albert
Their argument is that the internet and what the defendant is doing in it is reachable in NY, and the plaintiffs are residing there thats enough ground to fiel suit there!
With such a abstruse argument are the plaintiffs by the way in direct conflict to the court in Munich (Germany that is!)
For every stupid stuff in connection with the internet poeple sue in munich since that court there seems to be totally technophobe and often rules in favour of rediculous plaintiff's demands.
The argumetn for the jduges in munich is that they already have internet in bavaria too and thats why they are in charge for those cases.
"When will a bavarian judge sue a New Yorker one?!) ;-)

___

I don't undestand whats the labels problem with that (exept that they maybe do not have their lawyers under control and they do this stuff on their own initiative to make a buck or two from such really idiotic cases!) service is. It's not that the fact that infringing music is widely available "for free" in every nook and cranny of those millions of interconnected computers is something new that would not exist whre it not for that service!
(If I would post a specially crafted search query you enter into google so it helps you to find what that service finds too, An I, google and Ray in trouble too? will we be added to the complaint as defendants for showing even the last technophobe Label boss that had a conversation with his lawyer what the reality is out there in the "internet"?

I mean, If the labels are so anti- internet and all what comes with it
(and it's not that the internet was invented yesterday so that they got surprised with a new born baby and his behaviour! The "internet" like most of you know it is a full blown acne riddled 15 year old teenager with all the problems that came with such an age!)
why are they continue to release music in digital form day after day?

I mean, can't they simply have the dignity to finaly die at least without making such a fuss about their technophobia if they don't want to adapt and cry foul and "unfair competition" towards reality?!!; April 30, 2008 at 7:38:00 PM EDT
Anonymous said...: Well, of course there's hyperbole. Hyperbole is what makes pleading papers so much fun to read.

As for the RIAA's theory, that playlist.com infringes their copyrights merely by indexing http links to mp3s, just like Google does? That's a page straight out of the MPAA's playbook. How interesting that the RIAA is following in the MPAA's footsteps for a change!

I guess the MPAA's success, in beating Bittorrent indexers and other small search engines into settlements before the merits come anywhere near adjudication (and phooey to the DMCA Safe Harbor!) is catching on. Oh well.; April 30, 2008 at 11:04:00 PM EDT
Anonymous said...: What makes pre-1972 recordings distinct from more recent recordings? If they're out of copyright, or treated differently by copyright law, then the RIAA may have no claim other them, although this filing obviously tries to make the "moral" case that the record companies have more rights to pre-1972 recordings than anyone else.

XK-E; May 3, 2008 at 5:05:00 PM EDT

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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