Recording Industry vs The People: February 2012

Wednesday, February 29, 2012

Grooveshark moves to dismiss for failure to state a claim

In the RIAA's case against Grooveshark, Arista Music v. Escape Media, Grooveshark and several other defendants have moved to dismiss the amended complaint for failure to state a claim.

Memorandum of law of defendants Escape Media, Samuel Tarantino, and Joshua Greenberg in support of motion to dismiss amended complaint for failure to state a claim

In Arista v Escape Media, Grooveshark's employee defendants move to dismiss

In Arista Music v. Escape Media, five of the Grooveshark employees named as defendants in the amended complaint have moved to dismiss, on the ground that they are not subject to jurisdiction in New York.

Memorandum of law in support of jurisdiction defendants' motion to dismiss amended complaint

[Note: You may wonder why the RIAA added employees, of limited means. My guess is that they know that these individuals do not have strong financial resources, and are unequipped to defend themselves in a federal court litigation, so the RIAA wants to try to extort testimony from them against the 'deep pockets', by making a deal with them in which they are given a release in exchange for their 'cooperation'. Testimony obtained under such extortionate circumstances would have no probative value, and is probably unethical, but the RIAA has gone that route in the past. Some of the same lawyers who have used that tactic for the RIAA in the past are representing the RIAA in this case. If I were the judge, I would blow my stack. -R.B.]

Monday, February 20, 2012

Kenny Rogers accuses Capitol Records of failing to account for digital music sales

Tip of the hat to Roy Gordet, Esq., and Digital Music News for bringing this lawsuit to our attention.

In a new lawsuit filed in federal court in Nashville, Tennessee, singer Kenny Rogers has filed suit against Capitol Records, accusing it, among other things, of failing to properly account for royalties owed to him from digital music sales.

Complaint

Commentary & discussion:

Digital Music News

Thursday, February 16, 2012

Tenenbaum files petition for certiorari in US Supreme Court

In SONY BMG Music Entertainment v. Tenenbaum, defendant has filed a petition for certiorari to the United States Supreme Court.

Petition for certiorari

Tenenbaum responds to motion to strike, asks Court to allow RIAA to respond to reply briefs

In SONY BMG Music Entertainment v. Tenenbaum, defendant has filed a response to the RIAA's motion to strike his reply briefs,in which he asks the Court to allow the RIAA to respond to the arguments in his reply briefs.

Tenenbaum response to motion to strike

Reuters: DOJ run by former RIAA lawyers seeks $5 million in budget to help RIAA/MPAA

Interesting Reuters article:

Justice Dept seeks to bolster IP enforcement team

WASHINGTON | Mon Feb 13, 2012 4:00pm EST

(Reuters) - The Obama administration on Monday proposed hiring more prosecutors to pursue intellectual property crimes in the new budget as the entertainment industry pressures the Justice Department to crack down on copyright infringement and counterfeiting.

The overall proposed 2013 budget for the Justice Department was flat, $27.1 billion in discretionary spending, with officials shuffling funds to address the biggest priorities since there is little appetite in Congress to increase spending in light of recent $1 trillion-plus deficits.

Still, the Justice Department asked Congress for $5 million to hire 14 new employees, including nine attorneys, to focus on intellectual property crimes. Last year, the administration sought $3 million for six new hires but Congress refused....

Complete article

Associated Press sues news aggregator for copyright infringement

Hat tip to Wendy Davis at Online Media Daily for alerting me to this case. - R.B.

Associated Press has sued a news aggregator, Meltwater News, for copyright infringement and "hot news" appropriation.

Complaint

Commentary & discussion:

Online Media Daily

Wednesday, February 15, 2012

Court declines request to schedule deadline for amicus briefs in Capitol Records v ReDigi

In Capitol Records v. ReDigi defendant ReDigi had requested that the case management plan for the case include scheduling for amicus curiae briefs; the Court declined to include such a provision.

Letter of Morlan Ty Rogers to Court re case management plan
Letter of Richard Mandel to Court re case management plan
Order ruling on case management plan
Case management plan

In Capitol Records v ReDigi court denies premotion conference re Rdio termination of service

In Capitol Records v. ReDigi, ReDigi requested a premotion conference due to the shutoff of its 30-second clip streaming service by Rdio, Inc.; the Court denied the requested conference.

Letter of Ray Beckerman requesting premotion conference re Rdio shutoff
Order denying premotion conference

RIAA moves to strike Tenenbaum's reply briefs

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has filed a motion to strike defendant's reply briefs.

RIAA motion to strike defendant's reply briefs

Wednesday, February 08, 2012

Amended decision filed, & interlocutory appeal denied, in Capitol v MP3Tunes

In Capitol Records v. MP3Tunes, the Court has issued an amended decision granting and denying summary judgment motions, and adhering to its prior rulings, and has denied Capitol Records' motion for certification of an interlocutory appeal.

October 25, 2011, decision granting and denying summary judgment motions
January 9, 2012, decision denying Capitol Records' motion for certification of interlocutory appeal

Transcript of oral argument in Capitol Records v ReDigi

Below is a link to the February 6, 2012, oral argument in Capitol Records v. ReDigi:

Oral argument February 6, 2012

Tuesday, February 07, 2012

Tenenbaum files reply briefs responding to DOJ & Plaintiffs

In SONY BMG Music Entertainment v. Tenenbaum, defendant has filed his reply briefs responding to the Government's, and the Plaintiffs', briefs.

Defendant's reply memorandum responding to Department of Justice
Defendant's reply memorandum responding to plaintiffs

Decision Denying Capitol Records Motion for injunction against ReDigi

In Capitol Records v. ReDigi Judge Richard J. Sullivan, in a ruling delivered from the bench, denied Capitol Records' motion for preliminary injunction.

February 6, 2012, Decision Denying Preliminary Injunction Motion
February 6, 2012, Order Denying Preliminary Injunction Motion
Oral argument February 6, 2012

Commentary & discussion:

Bloomberg News
Hollywood Reporter
Digital Music News
WebPro News
New York Times
CNet
Digital Trends
Wired and Ars Technica
InfoBoom
Slate
Slashdot
Billboard
Extreme Tech
SlashGear
ubergizmo
Computer World
computeractive
Online Media Daily

Thursday, February 02, 2012

Google's motion to file amicus brief in Capitol v ReDigi denied

In Capitol Records v. ReDigi, the Court denied Google's motion for leave to file an amicus curiae brief.

February 1, 2012, order denying Google motion for leave to file amicus curiae brief

Commentary and discussion:

Hollywood Reporter
Digital Music News
Digital Trends

Wednesday, February 01, 2012

Capitol Records opposes Google motion in Capitol v ReDigi; says it's not really challenging cloud storage or space shifting

In Capitol Records v. ReDigi, plaintiff's counsel have filed a letter opposing Google's request for leave to file an amicus brief.

In their letter they state that they are not challenging cloud storage or space shifting.

Plaintiff's counsel's February 1, 2012, letter to Court opposing Google request

Commentary & discussion:

Slashdot

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