Recording Industry vs The People: April 2008

Wednesday, April 30, 2008

Patry praises Atlantic v. Howell but criticizes portion of decision which says MediaSentry was not authorized

William Patry, author of the treatise Patry on Copyright, has weighed in with a blog post in which he praises Judge Wake's recent decision in Atlantic v. Howell, but criticizes the portion of the decision which holds that MediaSentry was not authorized to download the 12 copies, and that MediaSentry's own downloads could constitute a "distribution" even though there was no sale or other transfer of ownership, there was no license, lease, or lending, and there was no dissemination to the public, all of which are requirements for a distribution under the Copyright Act.

Commentary & discussion:

ZDNet
LA Times

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

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

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.]

Tuesday, April 29, 2008

RIAA summary judgment motion denied in Atlantic v. Howell; RIAA 'making available' theory & Judge Karas 'offer to distribute' theory rejected

In Atlantic v. Howell, the Phoenix, Arizona, case in which the defendant has been representing himself, the Court has denied the RIAA's summary judgment motion.

The 17-page decision:

-rejected the RIAA's "making available" theory (in agreement with Atlantic v. Brennan, Elektra v. Brennan, and London-Sire v. Doe 1), noting that "Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place";

-rejected the "offer to distribute" theory suggested to the RIAA by Judge Karas in Elektra v. Barker;

-rejected the RIAA's theory, accepted by Judge Karas, that "distribution" and "publication" are simply synonyms under the Copyright Act (in agreement with London-Sire v. Doe 1 and disagreement with Elektra v. Barker);

-held the RIAA's evidence inconclusive as to whether the defendant was the person who actually put the files in a 'shared files folder'; and

-held the RIAA's evidence inconclusive as to whether the defendant could be held liable under a "secondary liability" theory.

This is the Arizona case in which (a) the Court initially ruled in the RIAA's favor, (b) after receiving a "reconsideration" motion from the self-represented defendant, the Court recalled and vacated its earlier decision, (c) the Court asked for supplemental briefs, responding to -- among other things -- the question of whether Mr. Howell's mp3 files, copied from his cd's, were "unlawful", and the RIAA responded "yes", (d) the Electronic Frontier Foundation filed an amicus curiae brief on Mr. Howell's behalf, and (e) Fred Von Lohmann of the EFF participated in the oral argument.

April 29, 2008, Decision, Denying RIAA Motion for Summary Judgment* (2008 ILRWeb (P&F) 1665)

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
Slashdot
Electronic Frontier Foundation
Ars Technica
TechDirt
p2pnet.net (4/30/08)
C/Net News
The Register
Heise Online (German)
ZDNet
Online Media Daily
PC World
Patry Copyright Blog
Tech News World
mog
ZDNet (4/30/08)
NEWSFACTOR.com
TipAdept Dot Com
The Inquirer
Wired (Eliot Van Buskirk)
Wired (David Kravets)
The Consumerist
p2pnet.net (5/1/08)
ZeroPaid
cdfreaks.com
ZeroPaid (5/1/08)
eCommerce Times
La Shawn Barber's Corner
Top Tech News
LA Times
Daily Tech
Copyfight
Inside Music Media
Interiuris (Spanish)

Students move for reconsideration and stay in Ohio State University case, Arista v. Does 1-9

In Arista v. Does 1-9, the Columbus, Ohio, case targeting Ohio State University students, the students have made a motion for reconsideration of the Court's initial decision denying their motion to quash, and for a stay.

Motion for reconsideration*
Motion for stay*

* Document published online at Internet Law & Regulation

In Elektra v. Licata defendant opposes dismissal without prejudice, says dismissal should be with prejudice and with attorneys fees

In the Cincinnati case, Elektra v. Licata, where the RIAA -- after forcing the defendant's attorney to put in 140 hours of work on the case -- is now seeking to dismiss "without prejudice", the defendant is asking the Court to provide that (a) the dismissal will be "with prejudice" and (b) defendant will be reimbursed for his attorneys fees.

Defendant'a opposition to RIAA's motion to dismiss "without prejudice"*

* Document published online at Internet Law & Regulation

Monday, April 28, 2008

In Atlantic v. Howell court schedules final pretrial conference for August 25th, grants uncontested motion for hard drive & cd inspection

In Atlantic v. Howell, Mr. Howell did not oppose the RIAA's request for an examination of Mr. Howell's hard drive and cd's. The Court granted the unopposed motion, and scheduled a final pretrial conference for August 25th.

We are not aware of any ruling on the plaintiffs' summary judgment motion.

Defendant's response to motion for examination of hard drive and cd's*
April 22, 2008, Order granting unopposed motion for examination of hard drive and cd's*
April 28, 2008, order scheduling final pretrial conference*

* Document published online at Internet Law & Regulation

Amended complaint filed in Atlantic v. Brennan

The RIAA has now filed its complete amended complaint (the previous version omitted page 3) in Atlantic v. Brennan, the case in which District Judge Janet Bond Arterton had ruled the initial complaint to be insufficient.

[Ed. note. After reviewing the amended complaint, we were unable to determine the difference between the amended complaint and the original complaint. If any of our readers spot it, please let me know. Thanks. -R.B.]

Amended complaint*

* Document published online at Internet Law & Regulation

Motion to quash denied in George Washington University case Arista v. Does 1-19

In Arista v. Does 1-19, the case targeting George Washington University students, the judge has denied the defendants' motion to quash the subpoena and vacate the Court's ex parte discovery order.

April 28, 2008, order and opinion denying motion to vacate ex parte discovery order* (-- F. Supp. 2d --, 2008 WL 1851772)

* Document published online at Internet Law & Regulation

Who runs RIAA settlement web site

Interesting article on Slashdot raises the question: "Who runs the RIAA's settlement web site?"

Commentary & discussion:

p2pnet.net

Friday, April 25, 2008

Defendants reply in support of motion to strike Linares declarations in Arista v. Does 1-21

In Arista v. Does 1-21, targeting Boston University students, the students have filed a reply memorandum in further support of their motion to strike all of the Carlos Linares declarations.

Reply in support of motion to strike Linares declarations*

* Document published online at Internet Law & Regulation

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