Recording Industry vs The People: September 2009

Monday, September 28, 2009

Lava v Amurao appeal argued on September 23rd, decision reserved

I attended the argument of the appeal in Lava Records v. Amurao on September 23rd.

The Court reserved decision.

During the appellant's initial argument, and the appellees' opposing argument, the questions of the judges focused on the specific facts of the case, primarily (a) a letter Mr. Amurao had sent prior to the lawsuit incorrectly indicating that "we" had engaged in file sharing, even though he himself had never engaged in it, and (b) Mr. Amurao's testimony at his deposition.

However, when Mr. Amurao's attorney, Richard A. Altman, rose for the rebuttal argument, the focus of the Court's questioning shifted to the type of evidence the RIAA had garnered prior to pursuing Mr. Amurao, i.e., the MediaSentry activities.

None of the members of the Court appeared familiar with those procedures. By the end of that final portion of the argument, however, they seemed to have understood that the MediaSentry investigation and subpoena could at best have led the RIAA to a computing device and to an an internet access account, but could not have identified an individual who had committed copyright infringement.

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Massachusetts cases to no longer be consolidated

An order was entered in Boston that the RIAA's Massachusetts cases are no longer to be consolidated:

Judge Nancy Gertner: Electronic ORDER entered: "Because of the number of cases and to facilitate judicial management, these cases will no longer be consolidated. All future filings should be filed in each defendants' respective case and no longer in the lead case." Associated Cases: 1:03-cv-11661-NG et al.(Gaudet, Jennifer)

[Ed. note. IMO this order comes about 6 years too late. IMO Judge Gertner's consolidation order was inconsistent with the Federal Rules of Civil Procedure, and all it ever accomplished was to give the RIAA an even greater economic advantage than it ordinarily enjoyed, give it greater ex parte access to the Court, and give defendants the feeling that they had no chance at all. See Suggestion No. 7 in Beckerman, Ray, "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations", The Judges Journal, American Bar Association, Summer 2008 Edition (Reprinted by Permission of the copyright owner, The American Bar Association) (PDF). -R.B.]

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Victoria A. Espinel nominated to be first White House Intellectual Property Enforcement Coordinator

According to this report in IP Watch, Victoria A. Espinel will be nominated to be the first White House Intellectual Property Enforcement Coordinator.

[Ed. note. I have no information, one way or the other, on whether this is a good appointment. The fact that the RIAA and MPAA praised the appointment sounds ominous, but what are they supposed to do? Attack the appointment? So if anyone has information on Ms. Espinel's background, let me know about it in the comments to this post. Thanks. -R.B.]

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Sunday, September 27, 2009

Good article about Zoe Keating's success through the internet

Hat tip to my friend ZAGrrl on Twitter:

Interesting article by Sarah Lacy in TechCrunch about popular cellist Zoe Keating (zoecello on Twitter):

"Zoe Keating: Web Fame that Actually Translated to a Career"

[Ed. note. You can probably guess that my favorite passage is this one:

[S]he gets that the model for musicians is thoroughly broken and she revels in it. I asked if she would take a huge record deal if it came to her now and she said “no” before I could finish the question. “I would definitely do it myself because I don’t want to compromise,” she said.

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, September 16, 2009

Lava v Amurao attorneys fee appeal set for Sept 23 in 2nd Circuit

Rolando Amurao's appeal from a lower court order denying his motion for attorneys fees in Lava Records v. Amurao, is scheduled to be argued before the US Court of Appeals for the Second Circuit, on Wednesday, September 23rd, on the Court's 10:00 a.m. calendar (pdf).

The appeal was initially scheduled to be argued on May 19th, but was adjourned at the RIAA's request.

[Ed. note. The case presents a typical "throwing in the towel" scenario. Mr. Amurao was sued only because he was the person who paid the bills for the internet access account in question. Subsequently, after substantial litigation, his daughter testified that she had engaged in p2p file sharing. The RIAA thereafter withdrew the case against Mr. Amurao, but refused to reimburse him for his attorneys fees. -R.B.]

Here are copies of the briefs:

Appellant's Brief
Appellees' Brief
Appellant's Reply Brief

The courthouse is at 500 Pearl Street in Manhattan. The proceedings are open to the public.

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Tuesday, September 15, 2009

Judge extends Tenenbaum's time to respond to plaintiffs' motion for judgment to October 5th

In SONY BMG Music Entertainment v. Tenenbaum, the Court granted defendant's motion for an extension of time, by extending his time to respond to plaintiffs' motion for judgment to October 5th:

Judge Nancy Gertner: Electronic ORDER entered granting [940] Motion for Extension of Time to 10 days after judgment to Respond to Plaintiffs' request for injunction by Joel Tenenbaum. "The Court construes counsel's motion as a motion for extension of time to respond to plaintiffs' motion for entry of judgment -- a judgment that will include any injunction that the Court decides to issue. The Court orders the defendant to file his objection to plaintiffs' motion for entry of judgment by October 5, 2009." (Gaudet, Jennifer)

Monday, September 14, 2009

RIAA lawyers refuse extension of time in SONY v Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, defendant has moved for an extension of time in which to oppose plaintiffs' motion for an injunction, after plaintiffs' lawyers rejected his request.

Defendant's motion for extension of time

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Tuesday, September 01, 2009

Plaintiffs move for entry of judgment in SONY v Tenenbaum

The plaintiffs have filed a motion for entry of judgment in SONY BMG Music Entertainment v. Tenenbaum.

Plaintiffs' motion for entry of judgment

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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