Recording Industry vs The People: January 2010

Friday, January 29, 2010

Reported that RIAA will ask for a 3rd trial in Capitol Records v Thomas

According to news reports, the RIAA has announced that it will elect not to accept a judgment for $54,000, but to instead go for a new trial, limited to the issue of the appropriate amount of statutory damages.

I checked the court's docket on PACER and found no confirmation of this.

[Ed. note. In my opinion, the Court erred in (a) failing to decide the constitutional question, and decide that even the minimum statutory damages of $750 would be unconstitutionally excessive under the due process clause as against actual damages of 35 cents, and (b) permitting a new trial at all. Even if the Court could find a permissible rationale for declining to decide the constitutional question, which it can't, there is still no way under existing copyright law any award of more than $750 could be legally sustainable. So even under that scenario the judge should be directing judgment for $18,000, not setting himself up for another circus. -R.B.]

Commentary & discussion:

p2pnet.nte
Slashdot
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

Thursday, January 28, 2010

RIAA asks for extensions of time in Tenenbaum & in Thomas-Rasset cases

The RIAA's lawyers have asked for extensions of time in both Capitol Records v. Thomas-Rasset and SONY BMG Music Entertainment v. Tenenbaum.

In Tenenbaum they've twice asked for extensions of time in which to respond to Tenenbaum's remittitur motion, and in Thomas-Rasset they've asked for an extension of time in which to decide whether to accept or to challenge the reduced $54,000 verdict.

SONY BMG Music Entertainment v. Tenenbaum second RIAA request for extension of time to answer remittitur motion
Capitol Records v. Thomas-Rasset RIAA request for extension of time in which to make up its mind about accepting or challenging reduced verdict

[Ed. note. What's the problem? Not enough lawyers? - R.B.]

Commentary & discussion:

p2pnet.net
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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, January 27, 2010

Reported that RIAA agreed to settle against Jammie Thomas-Rasset for $25,000

According to this report in p2pnet.net, the RIAA offered to accept $25,000 in full settlement of Capitol Records v. Thomas-Rasset, and the offer was turned down.

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, January 23, 2010

"Recording Industry vs The People" can now be subscribed to on Kindle

"Recording Industry vs The People" can now be subscribed to on Kindle:

http://is.gd/6SUrh

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 22, 2010

Jammie Thomas verdict reduced from $1.92M to $54,000

In Capitol Records v. Thomas-Rasset, the Judge has reduced the verdict from $1.92 million to $54,000.

The Judge did not reach the constitutional due process issue raised by Ms. Thomas-Rasset's counsel, instead deciding the motion based upon standard principles of "remittitur". The judge described the standard for remittitur as follows:

so grossly excessive as to shock the conscience of the court. A verdict is not considered excessive unless there is plain injustice or a monstrous or shocking result

In discussing the factors upon which his decision rested, Judge Davis indicated that he had found that Ms. Thomas-Rasset lied under oath.

Judge Davis also indicated that he found even the reduced amount to be "harsh" and that, were he -- rather than a jury -- deciding the appropriate measure of damages, the award might well have been even lower than $54,000. But he felt that since the jury had determined the damages, it was his province to determine only the maximum amount a jury could reasonably award.

The RIAA has 7 days to decide whether to accept the reduced verdict, or to request a new trial.

Decision granting remittitur

Commentary & discussion:

p2pnet.net
Digital Music News
Slashdot
afterdawn
p2pnet.net
Freakbits
[H]ardForum

[Ed. note. The decision is a thoughtful one, and vindicates the principle that statutory damages under the Copyright Act must be reasonably proportioned to the actual damages. But this verdict is still 6428 times the actual damages, and therefore continues to be excessive. I do not feel the Court had an option of avoiding the constitutional question, since even the $750 minimum statutory damages is ~2200 times the actual damages flowing from an unauthorized download of an mp3 file. -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

Tuesday, January 19, 2010

Dept of Justice files brief opposing motion to set aside verdict in Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the Department of Justice has filed a brief opposing defendant's motion to set aside the verdict on constitutional grounds.

Department of Justice opposition brief

[Ed. Note. Another low-class "ostrich" brief from the Department of Justice, which completely ignores (a) the wording and reasoning of the Supreme Court in Gore and Campbell, (b) the half dozen or so cases, and three law review articles, concluding that Gore and Campbell are applicable to statutory damages cases, (c) the absence of evidence of any "distribution" within the meaning of the Copyright Act, and (d) the actual holding, the actual facts, and the actual statute, in St. Louis v. Williams. I.e., the things we mentioned in the revised amicus curiae brief which we filed on behalf of the Free Software Foundation.

Completely unprofessional; indeed pathetic.

Fortunately, Judge Gertner is an eminent Constitutional Law scholar, and has demonstrated time and again that she is anything but lazy, and that even when the lawyers in the case do a lousy job, she and her staff will actually do the research and find the applicable law.

I haven't always agreed with her decisions, and the major body of her work in the consolidated RIAA cases has been very helpful to the RIAA, but she has demonstrated time and again that she is the best lawyer in this case. -R.B.]

Commentary & discussion:

Wednesday, January 13, 2010

Price fixing case against RIAA reinstated by 2nd Circuit

Hat tip to @cbcalvin on Twitter, and betanews:

In Starr v. SONY BMG Music Entertainment, an antitrust class action against the RIAA, the complaint -- dismissed at the District Court level -- has been reinstated by the Second Circuit.

Among other things, the Appeals court noted the following allegations:

First, defendants agreed to launch MusicNet and pressplay, both of which charged unreasonably high prices and contained similar DRMs. Second, none of the defendants dramatically reduced their prices for Internet Music (as compared to CDs), despite the fact that all defendants experienced dramatic cost reductions in producing Internet Music. Third, when defendants began to sell Internet Music through entities they did not own or control, they maintained the same unreasonably high prices and DRMs as MusicNet itself. Fourth, defendants used MFNs in their licenses that had the effect of guaranteeing that the licensor who signed the MFN received terms no less favorable than terms offered to other licensors. For example, both EMI and UMG used MFN clauses in their licensing agreements with MusicNet. Fifth, defendants used the MFNs to enforce a wholesale price floor of about 70 cents per song. Sixth, all defendants refuse to do business with eMusic, the #2 Internet Music retailer. Seventh, in or about May 2005, all defendants raised wholesale prices from about $0.65 per song to $0.70 per song. This price increase was enforced by MFNs.

January 13, 2010, Opinion of US Court of Appeals for the Second Circuit

Commentary & discussion:

betanews
Associated Press via New York Times
p2pnet.net
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

Monday, January 11, 2010

Samuelson,Wheatland "Statutory Damages in Copyright Law: A Remedy in Need of Reform" 51 Wm & Mary L Rev 439

The article by Pamela Samuelson and Tara Wheatland of the University of California law school, on statutory damages under the Copyright Act, has now been published at 51 William & Mary L. Rev. 439, and is available for download:

Samuelson & Wheatland, "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

Monday, January 04, 2010

Tenenbaum files motion for new trial attacking constitutionality of jury's award

In SONY BMG Music Entertainment v. Tenenbaum, defendant has filed a motion for new trial, attacking, among other things, the constitutionality of the jury's award as being violative of due process.

Motion for new trial

Commentary & discussion:

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