Recording Industry vs The People: August 2009

Sunday, August 30, 2009

Jammie Thomas-Rasset files reply papers in support of motion to set aside verdict

In Capitol Records v. Thomas-Rasset, the defendant has filed her reply brief in support of her motion to set aside the jury's $1.92 million verdict.

The RIAA also filed its reply brief in support of its motion to amend the judgment.

Defendant's reply brief in support of motion to set aside verdict
Plaintiffs' reply brief in support of motion to amend judgment

[Ed. note. For reference purposes, here is a link to my brief on the subject, and here is a link to the recent law review article by Prof. Pamela Samuelson and Research Fellow Tara Wheatland. -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

Wednesday, August 26, 2009

My music proposal for #sxsw trending in top 60; interactive proposal needs your support

I've submitted two proposals for presentations at the 2010 South by Southwest festivals. If you'd like to vote for them (and don't work for the RIAA) (:)) here are the links for the "panel picker" voting, which is open to the public, whether you are planning to attend the festival or not.

Interactive festival:

"How NewYorkCountryLawyer became a Twit"

Music festival:

"Recording Industry vs. The People"

My music panel is trending in the top 60.

My interactive panel, in the much more competitive "interactive" part of the festival, isn't doing as well.

As I look at it, the social media story is maybe even more important than the music business story, because it is the blogging and Slashdotting and grassroots organizing over the internet that enabled lawyers and litigants across the country to mobilize and learn from each other.

So if you could see your way clear to supporting the proposals, by spreading the word, and/or by voting and commenting, it would be appreciated.

-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

Saturday, August 22, 2009

Updated and revised version of scholarly article by Samuelson & Wheatland posted today

An updated and revised version of the working paper by Prof. Pamela Samuelson and Research Fellow Tara Wheatland of the University of California Berkeley School of Law, on the subject of Copyright Act statutory damages, has been posted:

"Statutory Damages in Copyright Law: A Remedy in Need of Reform"

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 loses its case against Yahoo's Launch Media internet radio station provider

In Arista Records v. Launch Media, the RIAA lost its copyright infringement case against a company which provides its users with individualized internet radio stations. The company, Launch Media, is now owned by Yahoo.

The US Court of Appeals rejected the RIAA's argument that the users' ability to customize the radio stations made them "interactive services" rather than "radio stations", and affirmed the ruling of the Court below, finding that the internet radio stations in question did not provide copyrighted sound recordings on request, and did not transmit a program specially created for the user.

Opinion of US Court of Appeals for Second Circuit affirming judgment for defendant

[Ed. note. There's an interesting lesson in this report for you law students and young lawyers out there. (1) All 4 of the "usual suspects" from the "Gang of 4" brought the suit. (b) After they lost the jury trial, only SONY BMG Music Entertainment pursued an appeal. (3) Had there been no appeal, all there would have been is a jury verdict, which in any other case could have been explained away as being based on, and limited to, a jury's conclusion as to the facts of the Launch Media case. (4) But SONY just had to pursue its appeal, resulting in a 42-page appellate decision holding that "as a matter of law" a personalized internet radio station of the type provided by Launch Media is NOT interactive, no matter what the jury might have found. (5) This decision now creates a safe harbor for a whole industry and business model. Thank you SONY. -R.B.]

Commentary & discussion:

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TechDirt
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

What didn't happen in the Tenenbaum and Thomas-Rasset trials

To my mind, both of the "trials" which took place recently, in Capitol Records v. Thomas-Rasset and SONY BMG Music Entertainment v. Tenenbaum were travesties.

For review purposes I cite my blog posts on the subject of what wasn't done that ought to have been done.

"Have any of the actual issues been dealt with in SONY v. Tenenbaum?"

"How Thomas-Rasset case would have played out, had we not been in the Parallel Universe"

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

Now that constitutionality of statutory damages is on front burner, here's my brief on the subject

The outlandish jury verdicts of 1.92 million dollars and 675 thousand dollars which have come down in Capitol Records v. Thomas-Rasset and SONY BMG Music Entertainment v. Tenenbaum, respectively, have moved from the back burner to the front burner the issue of the unconstitutionality of the RIAA's statutory damages theory under the Due Process clause of the 5th Amendment.

Accordingly I thought it an appropriate time to repost the amicus brief which I filed on the subject in Tenenbaum several months ago.

Revised amicus curiae brief of Free Software Foundation

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Wednesday, August 19, 2009

Audrey Amurao files reply brief in support of her cross-motion for summary judgment

In Lava Records v. Amurao II, the defendant has filed her reply brief in support of her cross-motion for summary judgment.

Defendant's reply memorandum in support of defendant's cross-motion for summary judgment

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 files reply papers in support of summary judgment in Lava v Amurao II

In the RIAA's case against Rolando Amurao's daughter, Audrey Amurao, Lava Records v. Amurao II, the RIAA has filed its reply papers, supporting its motion for summary judgment and opposing Ms. Amurao's cross-motion for summary judgment.

Plaintiffs' Reply Memorandum in connection with summary judgment motions

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Monday, August 17, 2009

My "panel" proposals for South by Southwest 2010 Music & Interactive Festivals #sxsw

I've submitted two proposals for presentations at the 2010 South by Southwest festivals. If you'd like to vote for them (and don't work for the RIAA) (:)) here are the links for the "panel picker" voting.

Interactive festival:

"How NewYorkCountryLawyer became a Twit"

Music festival:

"Recording Industry vs. The People"

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

Saturday, August 15, 2009

DOJ signatory has previously recused himself in content industry case

We just thought it interesting to point out that the lead signatory on the Department of Justice brief in Capitol Records v. Thomas-Rasset, Assistant Attorney General Tony West, has a content industry background, and recently recused himself in the Cartoon Network case.

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

DOJ Asks Court to Avoid Constitutional Question in Capitol v Thomas

In Capitol Records v. Thomas-Rasset, the opposition briefs in connection with the post-trial motions were filed yesterday. Reply briefs are due Friday, August 21st.

The RIAA defended the $1.92 million verdict based on infringement of 24 mp3 files.

The US Department of Justice, although agreeing with the RIAA that the award was constitutional, urged the Court to avoid the constitutional question by instead addressing the question of whether the verdict merited being set aside on "common law" grounds, as being "shocking to the conscience".

Ms. Thomas-Rasset filed a brief opposing the RIAA's motion to amend the judgment by adding an injunction.

Plaintiffs' Opposition Memorandum
DOJ Opposition Memorandum
Defendant's Opposition Memorandum

[Ed. note.

1. The US Department of Justice (a) continues to debase itself by misstating the law in its unseemly haste to provide cover for the RIAA, and (b) sinks to a new level of debasement by arguing that an award of 228,000 times the actual damages satisfies due process standards. Its awareness of the frivolousness of its constitutional argument is betrayed by its urging the Judge to reach the same result -- the setting aside of the verdict -- on non-constitutional grounds, the "common law" ground for remittitur that the verdict is "shocking to the conscience". A complete answer to all of the legal points argued by the DOJ's frivolous brief is found in the amicus curiae briefs which we filed in SONY v. Tenenbaum and SONY v. Cloud.

2. The RIAA's brief is another in the long line of frivolous briefs they have filed, arguing that the size of the verdict can be measured against all of the damages the plaintiffs have suffered from all of the copyright infringements since time immemorial, and wallows in speculation -- unsupported by any actual evidence and based solely upon two inhouse lawyers' opinions -- as to how much actual damage Ms. Thomas-Rasset's alleged 24 downloads caused.

3. Both the RIAA and DOJ briefs take the "ostrich" approach to the Supreme Court's jurisprudence regarding due process standards for "punitive awards".

4. The defendant's brief correctly observes that the court was under no obligation to tack on an injunction to its ludicrous $1.92 million money judgment.

-R.B.]

Commentary & discussion:

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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

Tuesday, August 11, 2009

William Patry starts up new copyright blog "Moral Panics and the Copyright Wars"

Bill Patry, who published a well respected copyright blog, and then ceased publication, has started up a new copyright law blog entitled "Moral Panics and the Copyright Wars". Welcome back, Bill.

-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

Monday, August 10, 2009

In Andersen v. Atlantic class action, oral arguments scheduled for October 19th

In the abuse of process class action in Oregon, Andersen v. Atlantic Recording, oral argument of the plaintiff's motion to certify a class and defendants' motion for summary judgment is scheduled for October 19th:

Scheduling Order by Judge Anna J. Brown. Oral Argument regarding Plaintiff's Motion to Certify the Class 120 and Defendants' Motion for Summary Judgment 127 is set for 10/19/2009 at 09:30AM before Judge Anna J. Brown. (sm) (Entered: 08/03/2009)

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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