Write to your Congressperson urging rejection of the "Pro-IP" Act

I urge every informed reader who lives in the United States to write to his or her Congressman to urge rejection of the RIAA-backed Pro-IP Act, which does the exact opposite of what Judge Davis has urged Congress to do.

The matter is of extreme urgency because the Senate has passed the bill unanimously.

Thanks to Slashot for the information.

Keywords: lawyer 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 portable music player

Amicus curiae brief submitted in Arista v. Limewire on secondary liability and inducement

In Arista Records v. Lime Wire, an amicus curiae brief has been submitted on the issue of 'secondary liability' and the 'inducement' rule, by the following organizations jointly:

-Electronic Frontier Foundation;
-Center for Democracy and Technology;
-Computer & Communications Industry Association;
-Consumer Electronics Association;
-Home Recording Rights Coalition;
-Information Technology Association of America;
-Public Knowledge;
-Special Libraries Association; and
-U.S. Internet Industry Association.

Although the brief states that it is submitted on behalf of "neither party", it takes issue with arguments made by plaintiffs in connection with the parties' summary judgment motions.

Amicus curiae brief of EFF and 8 other organizations

Keywords: lawyer 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 portable music player

RIAA's $222,000 verdict in Capitol v. Thomas set aside. Judge rejects 'making available'; attacks excessive damages.

In Capitol v. Thomas, District Judge Michael J. Davis has set aside the jury's $222,000 verdict and ordered a new trial, ruling that his jury instruction -- which accepted the RIAA's "making available" theory -- was erroneous. He also rejected the 'offer to distribute' theory.

Although he did not formally reach the arguments going to the excessiveness of the damages, he had this to say on the subject:

Need for Congressional Action

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 such as the one currently before this Court. The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market. Cf. Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 42 737, 741, 42 (D. Md. 2003) (describing defendants as a “global financial services firm” and a corporation that brokers securities).

While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.

Thomas not only gained no profits from her alleged illegal activities, she sought no profits. Part of the justification for large statutory damages awards in copyright cases is to deter actors by ensuring that the possible penalty for infringing substantially outweighs the potential gain from infringing. In the case of commercial actors, the potential gain in revenues is enormous and enticing to potential infringers. In the case of individuals who infringe by using peer-to-peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence.

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.

September 24, 2008, decision setting aside verdict

Commentary & discussion:

Electronic Frontier Foundation
p2pnet.net
Wired.com
Associated Press (Via Minneapolis Star Tribune)
Slyck
Ars Technica
Heise Online (German)
Digital Music News
Wall Street Journal
Digg
PC World
Duluth News Tribune
Slashdot
ZeroPaid
Broadband DSLReports.com
Good Morning Silicon Valley
eFlux Media
Download Squad
Wired.com (9/25)
engadget
electronista
ReadWriteWeb
ZDNet (9/25)
Hack in the Box
Torrent Freak
Digital Trends
CD Freaks
The Josh Kagan Blog
TechRadar.com
Gizmodo UK
GroundReport
Gazetapa.pl Technologie (Polish)
Illinois Business Law Journal

Keywords: lawyer 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 portable music player

Motion to dismiss or for more definite statement denied in PA case, SONY v. Cloud. Defendant moves for reconsideration.

We have just learned of a case in Philadelphia, SONY BMG Music v. Cloud, where the defendant moved to dismiss the complaint or for a more definite statement, the Court denied the motion, and the defendant has moved for reconsideration, or for the certification of an interlocutory appeal.

August 22, 2008, decision denying motion to dismiss
Defendant's motion for reconsideration, memorandum of law
Defendant's motion for reconsideration, part 1 of exhibits
Defendant's motion for reconsideration, part 2 of exhibits

Keywords: lawyer 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 portable music player

Class action against Kazaa, Lewan v. Sharman, quietly settled last year

We have recently learned that the class action which had been commenced in Chicago, in 2006, against Kazaa, Lewan v. Sharman, was quietly settled, last Fall, in an off-the-record settlement.

Docket Entry indicating case had been settled

Commentary & discussion:

p2pnet.net

Keywords: lawyer 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 portable music player

Interesting article in Minnesota Journal of Law, Science & Technology

Thanks to Prof. Deirdre M. Smith of the University of Maine Law School, and the faculty advisor for its Cumberland Legal Aid Clinic, for bringing this law review note to my attention:

A thoughtful article has appeared in the Minnesota Journal of Law, Science & Technology, a publication of the University of Minnesota School of Law, authored by law student Daniel Reynolds.

It begins:

The Recording Industry Association of America (RIAA)’s lawsuit campaign against copyright-infringing file sharing is controversial. Many critics allege that this campaign is unfair and paint the RIAA as mean and a bully. Some critics even claim that the RIAA is subversive toward the rights of the public. At the same time, any file sharers continue to violate the distribution and reproduction rights of copyright holders, record labels, and artists, all who have justified expectations of payment for heir products.

This Note examines the RIAA’s approach and alternative approaches to the file sharing problem, and proposes an integrated, comprehensive strategy for dealing with the problem of illegal file sharing. Part I provides a background on the RIAA and its opinions, the development of the RIAA lawsuits, the public backlash against these lawsuits, and the relevant law. Part II describes the challenges to be met by any solution to the file sharing problem, reviews a series of proposals for their strengths and weaknesses, and sets forth a strategy that balances the strengths of a number of previous proposals against each other’s weaknesses. This Note concludes with the assertion that the file sharing problem is solvable without wasteful, unpopular lawsuits or major changes to the law, provided that the music industry is willing to adapt to and take cues from the consuming public.

Complete article:
Reynolds, Daniel. Note. The RIAA litigation war on file sharing and alternatives more compatible with public morality. 9 Minn. J. L. Sci. & Tech. 977-1006 (2008).

Commentary & discussion:

Art Law for Everyone

Keywords: lawyer 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 portable music player

San Antonio, Texas, "innocent infringement" case, against girl who was 16 years old, Maverick v Harper, goes to jury trial in November

The San Antonio, Texas, case of Maverick Recording Co. v. Harper, in which the RIAA is pursuing a young lady who was 16 years of age at the time of the alleged infringement, will proceed to a jury trial on November 17th over the issue of whether she is entitled to the innocent infringement defense, which might reduce the statutory damages from $750 to $200.

The judge has previously ruled that the RIAA must proceed to trial on this issue unless it were willing to accept $200 per infringement, since there are many material factual issues that must be decided by the jury.

This will be only the second known jury trial in the RIAA litigation campaign, and the first to focus on the innocent infringement defense.

The trial is scheduled as follows:

When: Monday, November 17, 2008, 9:30 A.M.
Where: John H. Wood, Jr., Courthouse
Courtroom #3, First Floor
655 East Durango
San Antonio, Texas

The trial is open to the public.

Notice of Trial

Commentary & discussion:

p2pnet.net
Ars Technica
Daily Online Examiner
Boing Boing
Geeks Are Sexy

Keywords: lawyer 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 portable music player

Plaintiffs move to voluntarily dismiss UMG Recordings v. Lindor without prejudice, seek 'discovery sanctions'

In UMG Recordings v. Lindor, the RIAA has made a motion to voluntarily dismiss its case without prejudice, and for "discovery sanctions" against defendant and her counsel.

Plaintiffs' memorandum of law in support of motion for voluntary dismissal without prejudice
Exhibits A to I
Exhibits J to Q
Exhibits R to V

Commentary & discussion:

Wired.com
Slashdot
Techdirt
Broadband Reports
ZeroPaid
Ars Technica
Electronista
PrefixMag.com
p2pnet.net
gulli (German)
Excess Copyright
ezee.se
Afterdawn.com
Numerama (French)
adslgr.com (Greek)
Punto Informatico (Italian)
The iPod Observer
Privacy Digest
Digital Media Wire
CrimLaw
Paragon Forums
Heise Online (German)
WinFuture (German)
Overlawyered
Computer Base (German)
Idolator
Silicon Alley Insider
Hitsville
Computer World
YouTube Robot
Bluetack Internet Security Solutions
Internet Patrol
Blog for One
White Noise
CD-R (Czech)
IPKat
Info World
Hollywood Reporter ESQ
Tynan on Tech
Daily Online Examiner
Quart (Hungarian)
E-dribble
Free Software Daily
Scholars & Rogues
Legal Blog Watch
IP Notiz (German)
Popehat
Overlawyered
PC World
ipwars.com
Remixtures (Portugese)
THR, Esq


[Ed. note. Many supporters have asked how they can help financially. Anyone who wants to contribute to Ms. Lindor can do so here and click "Donate". Anyone who wants to contribute to the Expert Witness Defense Fund, which helps people like Ms. Lindor with hiring experts and tech consultants can do so here. Anyone who wants to contribute to me, to help me with the work I do in my blogging and getting the word out, can do so here, clicking the "Donate" button. Another way to help out my blog is to make purchases of goods or services through the affiliate ads I post on the blog. If there are any merchants, products, or services not represented there which you would make a purchase from, let me know by posting a comment to this post, and I'll try to get affiliate ads posted for them. Thanks to all for the tremendous outpouring of support. -R.B.]

Keywords: lawyer 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 portable music player

To contribute to Marie Lindor's legal defense, see below.

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.

In Elektra Entertainment v. Licata, Magistrate grants RIAA motion to withdraw case, denies attorneys fees for defendant. Mr. Licata appeals.

In another "throwing in the towel" case, this one in Cincinnati, Ohio, Elektra v. Licata, the Magistrate Judge has (a) granted the RIAA's motion for voluntary dismissal without prejudice, (b) denied defendant's motion for attorneys fees, and (c) denied Mr. Licata's motion to dismiss the complaint as "moot".

The Magistrate Judge reasoned that Mr. Licata had the duty to inform plaintiffs sooner that his children were planning to "take the Fifth Amendment".

Mr. Licata has filed objections to the Magistrate Judge's decision, which will be determined by the District Court Judge.

Decision of Magistrate Judge Allowing Voluntary Dismissal Without Prejudice
Defendant's Objections to Decision of Magistrate Judge

Keywords: lawyer 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 portable music player

Action Alert from Public Knowledge

Action Alert from Public Knowledge:

Action Alert: Tell the Senate to Hold Up the Enforcement Bill

Last week, the Senate Judiciary Committee gave the green light to S. 3325, the Enforcement of Intellectual Property Act of 2008. We need you to show them the red light, NOW! This intellectual property enforcement bill lets the DOJ enforce civil copyright claims and lets the government do the MPAA and RIAA’s copyright enforcement work for them—at the taxpayers’ expense.

CLICK HERE TO CALL THE SENATE JUDICIARY MEMBERS NOW

CLICK HERE TO SEND YOUR MEMBERS A FAX

By allowing the federal government to sue infringers in civil court, the DOJ would be asking a court for monetary damages on behalf of content owners. In a civil suit brought by the government, the defendant loses many of the protections he possesses in a criminal action—including his right to free legal representation. What’s more, the government’s legal burden of proof is lower: the government only needs to prove infringement with a “preponderance of the evidence,” meaning that it’s more likely than not that infringement occurred, as opposed to the usual criminal standard of “beyond a reasonable doubt.”

Does the content industry need this help from the Department of Justice? Absolutely not! In the last five years, the RIAA filed or threatened more than 30,000 suits against alleged infringers. If the Enforcement bill passes, not only will the number of such suits increase—they’ll also be paid for with your tax dollars.
Now, the bill’s backers are pushing to have it pass the Senate as early as today via a streamlined procedure, without the full Senate voting on the measure. Tell members of the Senate Judiciary Committee that you don’t want your tax dollars spent on DOJ’s civil enforcement of copyright, and to put a hold on the bill.


CLICK HERE TO CALL THE SENATE JUDICIARY MEMBERS NOW

CLICK HERE TO SEND YOUR MEMBERS A FAX

To learn more about the Enforcement bill:
• See this blog post
• Read the letter from 12 concerned public advocacy groups
• And learn more about the bill at OpenCongress
________________________________________
Public Knowledge
1875 Connecticut Ave, NW
Suite 650
Washington, DC 20009
License: CC BY-SA

Keywords: lawyer 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 portable music player

Interesting article on URLWire: "Singer Songwriter Tom Fox Offers Legal Free MP3 Downloads"

Interesting article on URLWire:

Singer Songwriter Tom Fox Offers Legal Free MP3 Downloads

Tom Fox is an award-winning international guitarist, singer and songwriter who has come up with a simple solution to the problem of digital distribution of his music: Give it away.

Guitarist, singer and songwriter Tom Fox is one of a small but growing group of artists giving away music for free rather than charging or having fans fined for stealing it. On his Web site at foxtunes.com, Tom has made CDs of free music downloads available, including songs from "Midnight Rain" (which was nominated for two independent music awards) and "Slowly" (which garnered radio spins on both sides of the Atlantic).

When asked about the wisdom of giving his music away for nothing, Tom replied, "Many musicians are so afraid of losing out on a 99 cent iTunes sale that they forget that giving away music free and legally has promotional value.”

“Offering free MP3s can accelerate the growth of your online listener base, which ultimately can generate exposure in the form of gig offers, Internet and satellite/terrestrial radio play (generating royalties) and traffic to your site," he said.

Complete article

Keywords: lawyer 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 portable music player

RIAA going after students at the State University of Albany, in Arista Records v. Does 1-16. Students retain lawyer and make motion to quash

In a new case, targeting students at the State University of New York's Albany, New York, campus, two "John Doe" students -- one of them named twice as different John Does -- have joined together, hired an attorney, and made a motion to quash the RIAA's subpoena seeking their, and other students', identities, in Arista Records v. Does 1-16.

The defendants' motion argues that:

-the plaintiffs have failed to make a sufficient showing to overcome the defendants' First Amendment right of anonymity;

-the plaintiffs failed to make a showing that the Court would have personal jurisdiction;

-the plaintiffs' case is based on evidence that was illegally procured;

-the rules do not authorize the joinder of the defendants in a single action; and

-the Court should award attorneys fees to defendants.

In his "Preliminary Statement", defendants' counsel wrote:

This litigation campaign has been seriously detrimental to the administration of justice and the public policy need to establish clear boundaries to copyright law. Repeatedly, the RIAA has used questionable and illegal investigations, unsupported and erroneous legal theories, and hardball and abusive litigation tactics against individuals who, it may safely be assumed, do not normally find themselves forced to defend their personal use of computers in federal courts. These individuals have the choices of paying the RIAA’s non-negotiable pre-litigation settlement demand (usually between $3000 and $5000), or defaulting, or defending themselves, either pro se or with counsel, if they can afford it. Few can. The RIAA has sued mostly working-class individuals, students, children, the disabled, the homeless and even the dead. They have frequently sued entirely innocent persons and are quite cavalier about the burden they impose on the legal process and the federal judiciary, and the effects of such frivolous suits on their defendants. Moreover, they are apparently in contempt of a district court’s order forbidding them from bringing actions against unrelated individuals, contrary to the joinder provisions of F.R.Civ.P. 20 and 21. See In re Cases Filed by Recording Companies” ILRWeb (P&F) 3053 (W.D.Tex. Nov. 17, 2004)(“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.”). Yet they have done precisely that, hundreds if not thousands of times.

Defendants' Memorandum of Law in Support of Motion to Quash Subpoena

Commentary & discussion:

p2pnet.net

Keywords: lawyer 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 portable music player

University of Maine John Doe case, Arista Records v. Does 1-27, is argued, defendants file supplemental brief

In one of the Portland, Maine, cases targeting students at the University of Maine, Arista v. Does 1-27, where a group of 8 students are represented by the MittelAsen law firm, and 2 other students are represented by student attorneys from the University's Legal Aid Clinic, oral argument was held on Friday, according to a report from the Bangor Daily News.

Student attorney Jason Rayne, a law student at the University of Maine, working with the Cumberland Legal Aid Clinic, argued the motions on behalf of the students represented by his clinic.

Prominent Portland attorney Bob Mittel argued on behalf of the students represented by his firm.

Defendants filed a supplemental memorandum, reminding the judge that only admissible evidence is permitted to be considered.

Defendants' Supplemental Memorandum

Commentary & discussion:

p2pnet.net

Keywords: lawyer 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 portable music player