University of Oregon John Doe case, Arista v. Does 1-17, withdrawn "without prejudice"

As it usually does once it obtains its response to the subpoena in its John Doe cases, the RIAA has voluntarily dismissed without prejudice its Portland, Oregon, case targeting students at the University of Oregon, Arista Records v. Does 1-17.

Notice of Dismissal

[Ed. note. I cannot for the life of me understand why the judge is allowing them to get away with this. They commenced what they claimed was a copyright infringement action against 17 individuals located at the University of Oregon in Eugene, OR. Then, once they get the identities of those individuals, they seek to dismiss the case so that they can pursue the defendants individually, thus denying them the benefits which would inure to them by having a common defense, common defense lawyers, etc. I think it is outrageous. I hope the judge wakes up to the fraud which has been perpetrated upon him, and in which he is an unwitting accomplice. -R.B.]



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John Doe #5 moves for reconsideration in LaFace Records v. Does 1-5

In LaFace Records v. Does 1-5, the case pending in the Western District of Michigan targeting students at Northern Michigan University, pro se litigant John Doe #5 has moved for reconsideration of the Magistrate Judge's order denying his motion to vacate and to quash.

Defendant John Doe #5's Motion for Reconsideration



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Pennsylvania defendant moves to dismiss complaint in SONY BMG Music v. Cloud

In SONY BMG Music v. Cloud, a Pennsylvania case, the defendant has moved to dismiss the complaint for failure to state a claim.

Defendant's Brief in Support of Motion to Dismiss Complaint



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March 9th set as trial date for new trial in Capitol Records v. Thomas

In Capitol Records v. Thomas, after setting aside the previous verdict, Judge Davis has scheduled the new jury trial for March 9, 2009.

Notice of Trial



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Maine Judge rules "John Doe" case may proceed against University of Maine students

In Arista Records v. Does 1-27, the Judge has denied all of the defendants' motions, and ruled that the case may proceed.

The Judge agreed with the RIAA on every legal issue presented.

October 29, 2008, decision



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Announcement from Harvard Law School Cyberlaw Students about SONY v. Tenenbaum

Received this interesting announcement from "CyberOne", the cyberlaw students at Harvard Law School, about SONY BMG Music v. Tenenbaum:

LEADING INTERNET LAWYER TO ARGUE COPYRIGHT THEFT DETERRENCE ACT UNCONSTITUTIONAL

Is the Constitution ready to embrace the reality of the Internet?

Cambridge, MA (October 2008) – The Recording Industry Association of America (RIAA) is in the process of bringing to bear the full might of its combined lobbying and litigating power. And one defendant, Joel Tenenbaum, is fighting back with the help of his mother, a leading copyright and internet lawyer, and a Harvard Law School cyberlaw class. What makes this counterclaim remarkable is not the legal tit-for-tat that is inherent in any contentious issue, but rather the fact that this legal team has taken its argument to the next level: constitutionality.

Joel is being threatened by the RIAA with punishment of more than a million dollars for downloading seven songs. Charles Nesson and his team of Harvard Law students are counterclaiming for abuse of process. They argue that the statute, which mandates damages of up to $150,000 for each willful download, is unconstitutional.

But is the Constitution ready to embrace the reality of Internet?

Nesson’s team alleges that the RIAA is abusing law and the civil process of the federal courts. “At its core this counterclaim raises a profoundly conceptual question: Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs, or do judge and jury claim the right and duty and power of constitution and conscience to do justice?” says Nesson. The counterclaim also alleges that the RIAA’s action in the name of “deterrence” constitutes an abuse of process used for the ulterior purpose of intimidating others by extreme example.

In the only previous situation in which an RIAA music-downloading case such as this has gone to trial, Chief Judge Michael Davis set aside a jury verdict of $221,000, declaring the statutory damage award to be “unprecedented and oppressive.”

Are there limits to how we deal with copyright in the age of ubiquitous information? And that’s exactly the question they hope the courts will finally address.

For more information, please visit: http://blogs.law.harvard.edu/cyberone/riaa/.

###

CyberOne is a course for Harvard Law School students learning to make things happen in a cyber world. Projects include furthering work already ongoing, as well as new inspirations expressing our growing ability to use the tools of cyberspace to connect in creativity and peace. Professor Charles Nesson is the William F. Weld Professor of Law at Harvard Law School and Founder of the Berkman Center for Internet & Society.

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Prof. Nesson of Harvard Law School takes on the RIAA in court in SONY v. Tenenbaum

Prof. Charles Nesson of Harvard Law School, an outspoken critic of the RIAA's litigation campaign, who once assigned to his Evidence class the job of drafting a motion to quash an RIAA "John Doe" subpoena, has gone to bat for an RIAA defendant in Boston, entering a case in which he will be taking the RIAA on directly, squaring off against Timothy Reynolds, Eve Burton, and Laurie Rust, the same Denver, Colorado, lawyers trying to dismiss UMG Recordings v. Lindor in Brooklyn.

The Massachusetts case is SONY BMG Music v. Tenenbaum, one of the hundreds of cases consolidated in Boston under the caption London-Sire v. Does 1-4.

On Mr. Tenenbaum's behalf, Prof. Nesson has filed an amended counterclaim, interposing counterclaims against the plaintiff record companies and against the RIAA itself, for both federal and state abuse of process.

Additionally, he has moved for a protective order with respect to the RIAA's request for a hard drive examination, and opposed the RIAA's motion to dismiss counterclaims.

According to court records, Prof. Nesson was assisted by law students Shubham Mukherjee and Nnamdi Okike in preparing his brief opposing the RIAA's motion.

Plaintiffs' Memorandum in Support of Motion to Dismiss Counterclaims
Defendant's Protective Order Motion for Hard Drive Inspection
Defendant's Opposition to Plaintiffs' Motion to Dismiss Counterclaims
Defendant's Amended Counterclaims
Defendant's Motion to Add RIAA as Additional Defendant on Counterclaims

[Ed. note. Among other things, Prof. Nesson is the lawyer who argued the famous Daubert case which established the Daubert reliability factors. So it should be quite interesting to see what he does with Dr. Doug Jacobson, the RIAA's so-called 'expert', or with the MediaSentry characters, who deny that they are experts (when trying to evade expert witness disclosure), but claim to be experts (when trying to avoid jail time for engaging in investigation without an investigator's license). -R.B.]

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Judge Gertner admonishes RIAA lawyers to stop 'bankrupting' pro se defendants with 'formalities' in Boston consolidated cases

Thanks to a friend of our blog, who sent me this transcript.

In the massive consolidated Boston case, termed London-Sire v. Does 1-4, where Judge Nancy Gertner has been presiding over 5 years worth of default judgments and forced settlements, we have learned that the Judge held a conference on June 17th covering a number of the cases.

The RIAA lawyers were present.

No lawyers were present for any of the defendants.

A few of the defendants were in the courtroom, but without lawyers representing them.

Among the remarks made by Judge Gertner:

-"There is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources." page 8

-"The law is ... overwhelmingly on their [the record companies'] side." page 8

-"Sometimes they answer and get counsel, and because the law is so overwhelmingly on the side of the record companies, there's a negotiated settlement..." page 9

-"It simply doesn't make sense to fight them as an individual, [pro] se..." page 9

-"...counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... to understand that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." page 11

Transcript of June 17, 2008, conference attended by RIAA lawyers and pro se defendants

[Ed. Note. While it is heartening to see Judge Gertner show some recognition of the unfairness in the way these cases are being handled, it is unclear how she can say that the law is overwhelmingly on the side of the record companies when she recognizes that for the past 5 years she's only been hearing one side of the argument. It is also disheartening that she evidences no recognition of how she has herself contributed to the "imbalance" by consolidating all of the cases, thus (a) providing the record companies with massive economies of scale not available to the defendants, (b) providing virtually untrammeled ex parte access to the Court on all common legal issues, and (c) creating a one-sided atmosphere in the courthouse that causes all defendants to abandon hope. How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side, when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves? -R.B.]

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p2pnet wins libel case

In a landmark ruling, a Canadian court has ruled that a web site's publication of hyperlinks to an allegedly defamatory web site is not in and of itself a 'publication', and therefore cannot in and of itself constitute defamation. In a 10-page decision (PDF), Crookes v. Wikimedia, Sup. Ct., British Columbia, Judge Kelleher dismissed the libel case against Jon Newton, the publisher of p2pnet.net, which was based on the fact that his article contained links to the allegedly defamatory site, since hyperlinks, the Court reasoned, are analogous to footnotes, rather than constituting a 'republication'. Mr. Newton was represented in the case by famous libel, slander, and civil liberties lawyer Dan Burnett of Vancouver, British Columbia.

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Judgment entered in Maverick v. Harper in accordance with "innocent infringement" measure of damages

In Maverick v. Harper, in which the Judge ordered the RIAA to either accept a $200-per-recording judgment based on the "innocent infringement" defense or go to trial, and in which the RIAA accepted the "innocent infringement" defense, the Court has now entered judgment based upon its previous findings. Since the Court find 37 recordings to have been infringed, judgment was entered for $7400.

A copy of the judgment was made available online by Wired.

Judgment

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SUNY Albany students file reply memorandum in support of motion to quash in Arista Records v. Does 1-16

In Arista Records v. Does 1-16, a case targeting students at the State University of New York in Albany, the students have filed a reply memorandum of law in support of their motion to quash.

Among other things, defendants argued:

Plaintiffs .... point to this Court’s granting of their ex parte request for discovery as proof of the facial validity of their claims, but this argument cannot be taken seriously. Courts act only on the basis of what is presented to them, but once an ex parte order is challenged, the Court is obliged to take a fresh look, now that it has both sides of the issues. Plaintiffs have no presumptions in their favor merely because their order for discovery was granted.

As was shown in the Does’ memorandum, a plaintiff who would discover the identities of anonymous persons must demonstrate the existence of a valid, specific claim, supported by real evidence. The central allegation in the complaint is that "[p]laintiffs are informed and believe that each Defendant, without the permission or consent of Plaintiffs, has used, and continues to use, an online media distribution system to download and/or distribute certain of the Copyrighted Recordings...Through his or her continuous and ongoing acts of downloading and/or distributing to the public the Copyrighted Recordings, each Defendant has violated Plaintiffs’ exclusive rights of reproduction and distribution.” (Complaint, ¶ 22 at 5-6).

First, this vague allegation, devoid of both direct knowledge and specific facts, cannot satisfy the heightened pleading regime imposed by Bell Atlantic v. Twombly, ___U.S.___, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). See ATSI Communs., Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007): “To survive dismissal, the [non-moving party] must provide the grounds upon which his claim rests through actual allegations sufficient ‘to raise a right to relief above the speculative level.’” (quoting Bell Atlantic Corp., 127 S. Ct. 1955 at 1965). A viable complaint must include “enough facts to state a claim to relief that is plausible on its face.” Id., 127 S. Ct. at 1974. This one plainly does not.

Second, the Thomas decision (and many others as well), which plaintiffs completely ignore (Capitol Records v. Thomas, No. 06-1497 (D.Minn. Sept. 24, 2008); Does’ memorandum at 16-17), and which vacated the jury verdict in the only one of these cases to go to trial, held that merely making available files for distribution is not copyright infringement, as a matter of law. Thus the complaint fails to state a claim. That failure is sufficient reason to quash the subpoena.

Defendants' reply memorandum of law

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Rolando Amurao files reply brief in Second Circuit Appeal, Lava Records v. Amurao, over attorneys fees issue

In Lava Records v. Amurao, the appeal pending in the U.S. Court of Appeals for the Second Circuit over whether defendants should be awarded attorneys fees in cases where the RIAA "throws in the towel", Mr. Amurao has filed his reply brief, pointing out to the appeals court that the RIAA -- in its brief -- had totally ignored the leading recent cases on the subject.

Mr. Amurao's brief stated:

It should be a source of concern to this Court, and to district courts everywhere, that they are being used primarily to further a public relations effort, instead of adjudicating cases and controversies properly before them in general, and advancing copyright law by encouraging creativity in particular. Powerful and wealthy litigants who bring cases primarily to intimidate innocent people (and then keep the money instead of turning it over to the people who deserve it) should not expect sympathy when they blithely walk away after doing damage, and they should be compelled to make their victims whole.

Considering that plaintiffs’ primary motivation is to frighten people, and not to recover money, it seems entirely appropriate that they should pay fees when they lose. It is that simple, because a copyright plaintiff’s motivation matters, especially if the defendant prevails. See Fogerty, supra, 510 U.S. at 535 n.19; Bond v. Blum, 317 F.3d 385 (4th Cir.2003)(valid fair use defense; fee award would deter meritless actions); Assessment Techs. of WI, LLC v. WIREdata, Inc., 350 F.3d 640, 647 (7th Cir.2003)(“for a copyright owner to use an infringement suit to obtain property protection...that copyright law clearly does not confer, hoping to force a settlement or even achieve an outright victory over an opponent that may lack the resources or the legal sophistication to resist effectively, is an abuse of process.”).

The brief also pointed out the paucity of the RIAA's evidence:

Appellees’ error is apparent from the first sentence of its statement of the case (Br. at 2): “This case arose out of the substantial copyright infringement that took place on a computer in Amurao’s home and through his Internet account.” But computers do not get sued for copyright infringement, and the mere possession of a computer and an internet account does not automatically render the person who has them liable as either a contributory or vicarious infringer, anymore than does owning a copying machine or a video cassette recorder. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) at 930.....

The brief continued:

The complaint in this action makes no mention of either contributory or vicarious infringement. It simply alleges that Mr. Amurao is the primary direct infringer (A-29). Thus, when they sued Mr. Amurao, plaintiffs made the automatic assumption that he was a direct infringer. They were completely and utterly wrong, and they, not Mr. Amurao, should bear the consequences of that error. Ultimately, what this case and the thousands of others like it are about is whether defendants should be able to level the playing field, and whether lawyers should be encouraged to defend them by the possibility of a fee if they succeed. This is the theory behind fee-shifting statutes in civil rights and other litigation where the parties are likely to be in widely disparate economic circumstances, and the public policy issues significant. It should be equally applicable here. Given the concerns 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,” Elektra v. O’Brien, 2007 ILRWeb (P&F) 1555 (C.D.Cal., March 2, 2007)(copy annexed), there is only one way to address those concerns and to remedy that enormous imbalance, and that is to award fees to prevailing defendants, almost as a matter of course, as is already done in the First, Sixth and Seventh Circuits. This Court, as “the nation’s premier copyright court” (Gracen v. Bradford Exch., 698 F.2d 300, 305 [7th Cir. 1983][Posner, J.]) should adopt this view.

The case is likely to be argued in November or in early December. We will post the argument date as soon as it becomes available.

Defendant-Appellant's Reply Brief

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Slashdot poll on who should be US copyright czar

On the lighter side.... there is a poll running on Slashdot as to who should be appointed U.S. 'Copyright Czar':

Who Should Be the First US Copyright Czar?

Incredibly, I'm running neck and neck with Prof. Lawrence Lessig. However, we are both being beaten hands down by "CowboyNeal", a well liked Slashdot editor.

Cary Sherman is trailing badly.

(On Slashdot I'm known as "NewYorkCountryLawyer".)

-R.B.

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