Recording Industry vs The People: January 2009

Saturday, January 31, 2009

Opposing brief filed by Joel Tenenbaum and amicus brief filed by Courtroom View Network

Thanks to Ben Sheffner for making these briefs available.

The brief filed by Joel Tenenbaum, and the amicus curiae brief of CVN, filed in opposition to the RIAA's petition for 'mandamus or prohibition' in SONY BMG Music v. Tenenbaum, are now available online.

Opposition Brief of Joel Tenenbaum
Amicus curiae brief of CVN

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

Friday, January 30, 2009

14 news groups, including Associated Press and New York Times, file amicus curiae brief in opposition to RIAA petition

In SONY BMG Music v. Tenenbaum, a group of 14 news organizations, including the Associated Press and the New York Times, have filed an amicus curiae brief opposing the RIAA's petition to prevent internet streaming of the upcoming oral argument.

The other news organizations joining in the brief were Courtroom Television Network, Dow Jones & Co., Gannett Co. Inc., The Hearst Corp., Incisive Media, National Public Radio, NBC Universal Inc., Radio-Television News Directors Association, The Reporters Committee for Freedom of the Press, The E.W. Scripps Co., Tribune Co., and Washington Post Digital.

NBC Universal, one of the amici, is an affiliate of UMG Recordings, one of the plaintiffs.

Amicus Curiae Brief of Associated Press, New York Times, Courtroom Television Network, Dow Jones & Co., Gannett Co. Inc., The Hearst Corp., Incisive Media, National Public Radio, NBC Universal Inc., Radio-Television News Directors Association, The Reporters Committee for Freedom of the Press, The E.W. Scripps Co., Tribune Co., and Washington Post Digital

[Thanks to Jon Newton at p2pnet.net, BNA Internet Legal News by Michael Geist, and The Associated Press for bringing this to my attention, to Ben Sheffner for firsts making the briefs available online, and to Alter_Fritz for alerting me to the online briefs.]

Commentary & discussion:

p2pnet.net
Associated Press
Slashdot

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

Electronic Frontier Foundation files amicus brief in support of webcast of SONY BMG Music v. Tenenbaum hearing

The Electronic Frontier Foundation has filed an amicus curiae brief in opposition of the RIAA's petition to prevent internet streaming of the upcoming oral argument in SONY BMG Music v. Tenenbaum.

They were joined in their brief by Public.Resource.org, Media Access Project, Internet Archive, Free Press, California First Amendment Coalition, and lawyer Ben Sheffner.

Amicus Curiae brief of Electronic Frontier Foundation, Public.Resource.org, Media Access Project, Internet Archive, Free Press, California First Amendment Coalition, and Ben Sheffner

Commentary & discussion:

Electronic Frontier Foundation
Online Media Daily

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Another good article on the UMG Recordings v. Roy case in New Hampshire

Here's another good article on the New Hampshire case, UMG Recordings v. Roy.

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

Thursday, January 29, 2009

Default judgments continue to roll in, in Boston

For those of you who may think that District Judge Gertner has finally recognized that the RIAA's cases are not based on sufficient evidence, sound legal theory, or proper pleading, I would just want to let you know that she continues to enter default judgments, based on the RIAA's written submissions.

I have never reported on default judgments, and do not intend to start doing it now, but if anyone wants to check for themselves, they can go to Capitol Records v. Alaujan, D. Mass., 03-11661, which is the consolidated case for all of Massachusetts, and see for themselves.

It is mind boggling to me that a Judge, after learning that the Massachusetts State Police have preliminarily determined that the evidence upon which the RIAA's cases rest was obtained illegally, would enter judgments based on that evidence without even conducting a hearing. It is likewise mind boggling to me that any judge would accept a default judgment application based on (a) evidence that would be inadmissible in court, and (b) a cookie cutter pleading which patently fails the test of Bell Atlantic v. Twombly.

Needless to say, I am of the view that District Judge Janet Bond Arterton (D. Conn.) got it right in Atlantic Recording v. Brennan, and former District Judge Rudi M. Brewster (S.D. California) got it right in Interscope Records v. Rodriguez, when they held that the RIAA's default judgment applications are improper, and rejected them.

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 Online Media Daily about Cox Cable violating principle of net neutrality

Interesting article by Wendy Davis of Online Media Daily about Cox Communications's interference with the principle of net neutrality:

Cox's Plan To Interfere With Net Traffic Draws Criticism
by Wendy Davis

Cox Communications' new traffic-shaping plan is drawing harsh criticism from some net neutrality advocates.

"It is certainly a horrible idea and it's not the way the Internet ought to work," said Robb Topolski, chief technology consultant for broadband advocacy groups Free Press and Public Knowledge. "When I first heard about it, I thought it was an early April Fool's joke."

Cox, the third-largest cable company, said Tuesday that it intends to test a plan to manage congestion by occasionally prioritizing "time sensitive" traffic while slowing down other, less urgent material. The time-sensitive traffic includes Web streaming, email, instant messaging, games and remote connectivity. The material categorized as susceptible to delay includes bulk transfers of data for storage or file access, peer-to-peer protocols, software updates and Usenet newsgroups.

Complete article

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Wednesday, January 28, 2009

Oral argument in Capitol Records v. MP3Tunes now available online

Oral argument of EMI's motion to dismiss counterclaims in Capitol Records v. MP3Tunes.com, Inc. took place on January 16, 2009.

EMI argued that since MP3Tunes did not comply with the DMCA notices it contends were improper, it sustained no damages.

The argument started off with the following exchange:

THE COURT: Do you agree that if the plaintiffs distribute music for free on the Internet, your client distributes music for free on the Internet, the fact that those songs are somewhere on MP3tunes Web sites' is not infringement?

MR. BART: I think it still is infringement.

A copy of the transcript is now available online.

Oral argument of plaintiffs' motion to dismiss counterclaims, January 16, 2009

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

Tuesday, January 27, 2009

Interesting article by Tracy Mitrano in Chronicle of Higher Education

Came across this interesting article, in the Chronicle of Higher Education, by Tracy Mitrano, director of information-technology policy in Cornell University’s Office of Information Technologies, where she also directs the computer policy and law program:

Tracy Mitrano: Why the Recording Industry Stopped Suing Students

When the Recording Industry Association of America decided in December to stop filing bulk lawsuits against college students, several students in my “Culture, Law, and Politics of the Internet” course asked me to comment on the strategy. Here is what I said:

Over all, the [recording industry’s] approach was increasingly losing steam, both as a public-relations tactic and financially. More important, if the RIAA had any hope of creating tension between students and administrators, it ultimately backfired.....

Chronicle of Higher Education

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Request: how do we get copies of the letters Mitch Bainwol sent to the Commerce and Judiciary committees of Congress last month?

According to the Union Leader in New Hampshire, Mitch Bainwol of the RIAA sent letters to the Commerce and Judiciary Committees supposedly explaining the supposed cessation of lawsuits.

We need to get our hands on those letters. If anyone can get copies it would be appreciated.

Thanks.

-R.B.

[PS. Thanks to long-time reader derivative for pointing this out.]

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

Good article in Union Leader about UMG Recordings v. Roy

Thanks to the reader of our blog brought to my attention an excellent article in the Union Leader about UMG Recordings v. Roy, a case in which the defendant is represented by the Consumer and Commercial Law Clinic of the Franklin Pierce Law Center in Concord, New Hampshire:

NH woman fights back against music industry

By DAN TUOHY
New Hampshire Union Leader
Monday, Jan. 26, 2009

The music industry is singing a different tune to defend against illegal downloads, targeting Internet service providers instead of end users.

But the Recording Industry Association of America says pending lawsuits, including one involving a New Hampshire woman, will move forward.

Students at Franklin Pierce Law Center are counting on it. The woman, Mavis Roy of Hudson, has called on legal clinics at the state's only law school to represent her as she fights the charges in federal court this year.

Complete article

Commentary & discussion:

Monday, January 26, 2009

Jammie Thomas asks Court for extension to retain expert witness, received $3000 grant from Free Software Foundation

In Capitol Records v. Thomas, which is scheduled for its second trial to take place on March 9th, the verdict from the first trial having been set aside, the defendant has received a grant of $3000 from the Expert Witness Defense Fund of the Free Software Foundation to enable her to retain an expert witness.

In the first trial, she could not afford an expert witness to rebut the expert witness used by the RIAA.

Accordingly, her attorney has made a motion for an extension of the discovery deadline.

This is the second case in which the FSF's Expert Witness Defense Fund has lent assistance, the first being UMG Recordings v. Lindor, where it granted $2046.92 to compensate the expert witness and $750.00 to compensate the technical consultant. A full report of the Expert Witness Defense Fund's receipts and disbursements as of December 31, 2008, is available here.

Memorandum in Support of Motion for Extension of Discovery Deadline

[Ed. Note. Tax deductible contributions can be made to the Free Software Foundation, specifically earmarked for the RIAA Expert Witness Defense Fund, which funds are used to help the victims of RIAA lawsuits to hire technical experts and/or consultants, here.]

Commentary & discussion:

p2pnet.net
y-net (Hebrew)

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' motion for discovery sanctions partially granted in Arista Records v. Usenet.com

In the RIAA's case against Usenet.com, Inc., Arista Records v. Usenet.com, Inc., the Magistrate Judge -- in a 73 page opinion -- has partially granted plaintiffs' motion for discovery sanctions for spoliation of electronic evidence. The Court declined to consider portions of the defendants' expert witness's declaration due to the expert's failure to meet Daubert reliability standards as to those portions.

January 26, 2009, Memorandum Opinion and Order, Granting in Part, Denying in Part, Plaintiffs' Motion for Discovery Sanctions

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Here is the White House contact form

Here is a link to the White House's contact form.

Please urge President Obama not to appoint a representative of the content cartel as "copyright czar". To do so would be a continuation of putting the 'foxes in charge of the henhouse'.

Please also make sure the White House is aware of Judge Davis's remarks in Capitol v. Thomas, calling for congressional reform to protect against outlandish verdicts against noncommercial users.

Please pass this along.

Commentary & discussion:

p2pnet.net
AgoraVox

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

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