Recording Industry vs The People: RIAA terms Judge Wake's decision "strange" and "outside of mainstream"

Wednesday, April 30, 2008

RIAA terms Judge Wake's decision "strange" and "outside of mainstream"

According to a report in Ars Technica, the RIAA had this comment on Judge Wake's decision in Atlantic v. Howell:

"This is a strange decision that is outside of the mainstream and inconsistent with countless court rulings on these issues," RIAA spokesperson Cara Duckworth told Ars. "We are currently considering all options going forward."

[Ed. note. The RIAA's vehemently dishonest reaction demonstrates how important this eminently clear, quite "mainstream", not at all "strange", decision was. It was in fact the clearest and most mainstream decision of all on the subject, because it completely harmonized (a) the clear wording of the statute, (b) decades of caselaw applying the clear wording of the statute, and (c) unanimous agreement of all of the leading copyright law treatises. One wonders which "countless rulings" Ms. Duckworth is referring to: Motown v. DePietro, a case against a pro se litigant who never briefed the issue, or Atlantic v. Abner Anderson, another case in which the defendant never briefed the issue. And I guess Ms. Duckworth is forgetting about Atlantic v. Brennan, London-Sire v. Doe, and Elektra v. Barker, all of which thoroughly thrashed the RIAA's "making available" theory. - R.B.]

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

6 comments:

Anonymous said...: if you live in a reality distortion field like the RIAA/label guys do, of course you have the feeling that such a well reasoned decision is "strange" and not "mainstream"!

A_F
(just a drive-bye posting today); April 30, 2008 at 11:33:00 AM EDT
Kathleen Williamson said...: I think the Judge was very kind to them, considering that the facts are very clear that the RIAA attorneys violated ethical rules concerning candor with the tribunal in their motion for summary judgment. Their opinion about the legal substance of Judge Wake's ruling is equally distorted and unfair.
Kathleen Williamson
www.williamsonandyoung.com; April 30, 2008 at 12:25:00 PM EDT
James said...: Let's see what kind of indignant response we see if a judge finally decides to slap them with the sanctions they've deserved for so long...; April 30, 2008 at 4:44:00 PM EDT
Interested Observer said...: Everyone should read Wm Patry's comments on this case in his blog comments of today.; April 30, 2008 at 6:22:00 PM EDT
Todd said...: The RIAA is completely correct, a sensible decision by a judge over these issues is both "strange" and "outside of mainstream". This is the most honest the RIAA has ever been.; April 30, 2008 at 8:14:00 PM EDT
Faethe said...: Thank you for your blog Mr. Ray :) Back in 2002, when all this began, I read the copyright act. Being I am not a lawyer, this was a chore. But I did read it, and the associated arguments concerning 'distribution' and 'file-sharing'. There was almost nothing there, and what there was was inconclusive, or did not acknowledge that MP3's were considered an 'exact facsimile' but rather, a copy of a copy that's origins were shrouded in mystery.

In RIAA vs Diamond Multimedia, the judge found that 'Moreover, MP3 files do not even contain the codes which provide information regarding copyright and generation status' and thusly were not required to be subject to the SCMS. Furthermore 'the copy which the Rio made would be labeled under the SCMS as having "original generation status," thereby allowing an additional copy to be made'.

This, of course, does not apply to today's media which contains DRM, but I do suppose it does apply to 'mystery MP3s' which have no fixed origin. Files of this type are the ones most commonly associated with file-sharing networks. I remember a time when Media Sentry bragged that they could trace an MP3 all the way back to the original Napster. While that might be true, being that the file may contain a hash, it does not indicate the origin of the mp3, merely that it was once shared on Napster. Who introduces MP3s to filesharing networks today remains largely unknown. Unless the file itself contains DRM that states it's origin, it is foolish to assume that an individual bears responsibility for disseminating thousands of copies.

At any rate, the whole ruse of 'felony distribution should draw to a close now. More and more people will cite this decision in their cases. I imagine a lot of judges will be relieved.

Thanks again,

Faethe; May 2, 2008 at 6:26:00 AM 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