Friday, June 29, 2012

John Doe #4 files motion to quash, sever, dismiss in Malibu Media v. Does 1-5

In Malibu Media v. Does 1-5, a bittorrent download case pending in Manhattan before Judge Naomi Reice Buchwald, John Doe #4 has filed a motion to quash the subpoena, and for severance and dismissal.

Notice of Motion
Memorandum of Law
Affidavit of Morlan Ty Rogers
Declaration of John Doe #4

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Ray Beckerman, PC

Wednesday, June 27, 2012

Contract claim against television network for failing to pay for idea not preempted by Copyright Act

In Forest Park Pictures v. Universal Television Network, the US Court of Appeals for the 2nd Circuit has held that a claim for breach of an implied in fact contract, to compensate plaintiff if its idea for a series was used, was not preempted by the Copyright Act.

June 26, 2012, Decision

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Ray Beckerman, PC

John Doe #4 moving to quash in Malibu Media v Does 1-5

A motion to quash is being made by John Doe #4, in Malibu Media v. Does 1-5, US District Court, SDNY, Civil Action File No. 12-cv-2954 (NRB). Formal motion papers are due to be filed by Friday, June 29th.

June 18, 2012, Letter of Morlan Ty Rogers to Hon. Naomi Reice Buchwald, US District Judge

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Ray Beckerman, PC

In Liberty Media v Tabora, defendant moves to dismiss 'negligence' claim, EFF files amicus brief

In Liberty Media Holdings v. Tabora, a bittorrent download case in Manhattan, the defendant has moved to dismiss the complaint on the grounds that no copyright registrations had been filed for the films in issue, and that plaintiff's third claim -- for 'negligence' -- is preempted by the Copyright Act.

The Electronic Frontier Foundation has filed an amicus curiae brief supporting dismissal of the 'negligence' claim on preemption grounds.

Defendant's Memorandum of Law in Support of Motion to Dismiss Complaint
Amicus Curiae Brief of Electronic Frontier Foundation in Support of Motion to Dismiss Negligence Claim on Preemption Grounds

Ray Beckerman, PC

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Monday, June 25, 2012

Friday, June 22, 2012

Judge McMahon Dismisses & Severs in Combat Zone v Does 1-34

By Ray Beckerman of Ray Beckerman, PC

In Combat Zone v. John Does 1-34, Judge McMahon has issued a decision in which she severed and dismissed the claims against John Does 2 through 34.

June 18, 2012, Decision of Hon. Colleen McMahon dismissing and severing as to John Does 2-34

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Tuesday, June 19, 2012

Magistrate rules motion by pro se litigant couldn't be made anonymously in Malibu Media v Does 1-13

In Malibu Media v. Does 1-13, where a pro se litigant had made a motion to quash, sever, and dismiss, anonymously, a Magistrate Judge has ruled that the motion could not be made anonymously in the manner the litigant employed.

June 19, 2012, Report and Recommendation denying anonymous pro se motion

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Monday, June 18, 2012

Judge McMahon severs, dismisses, & quashes in Digital Sins v Does 1-245

In Digital Sins v. Does 1-245, a bittorrent downloading case pending in Manhattan, District Judge Colleen McMahon has issued a decision dismissing and severing all claims except the claim against John Doe #1, and quashing all related subpoenas. Among other things, Judge McMahon noted:

The only economy that litigating these cases as a single action would achieve is an economy to plaintiff- the economy of not having to pay a separate filing fee for each action brought. However, the desire to avoid paying statutorily mandated filing fees affords no basis for joinder. In these BitTorrent cases, where numerous courts have already chronicled abusive litigation practices - again, I refer to the reader to Magistrate Judge Brown's Report and Recommendation - forcing plaintiff to bring separate actions against separate infringers, and to pay a filing fee for each action, is the single best way to forestall further abuse. This is particularly important because the nature of the alleged copyright infringement - the downloading of an admittedly pornographic movie - has the potential for forcing coercive settlements, due to the potential for embarrassing the defendants, who face the possibility that plaintiffs thus-far-unsubstantiated and perhaps erroneous allegation will be made public.
May 5, 2012, Decision of Judge Colleen McMahon, dismissing, severing, quashing

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Thursday, June 14, 2012

Audio of Capitol v Thomas argument available online

In Capitol Records v. Thomas-Rasset, an audiotape of the June 12th argument in the 8th Circuit is available online.

Audiotape of June 12, 2012, argument in US Court of Appeals for the 8th Circuit

[Ed. note. One never knows what an appeals court will do, but here's my prediction: affirm. "Holistic"? Give me a break. ~R.B.]

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Daily Online Examiner (MediaPost)
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Wednesday, June 13, 2012

7th Circuit grants summary judgment in "obvious fair use" case, Brownmark Films v Comedy Partners

Hat tip to Barry Werbin, Esq., of Herrick, Feinstein, for bringing this decision to my attention. -R.B.

In Brownmark Films v. Comedy Partners, involving the "Canada on Strike" South Park episode, the US Court of Appeals for the 7th Circuit granted summary judgment for the defendant, on the ground that the episode was obviously a parody entitled to the fair use defense.

June 7, 2012, Decision

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Tuesday, June 05, 2012

Jammie Thomas case scheduled for argument in 8th Circuit, Tuesday June 12th, 9 AM

In Capitol Records v. Thomas-Rasset, oral argument before the US Court of Appeals for the 8th Circuit is scheduled for Tuesday, June 12th, at 9:00 A.M. Each side has been alotted 30 minutes for its argument.

The argument will take place at the Warren E. Burger Federal Building & U.S. Courthouse at 316 N. Robert Street, St. Paul, Minnesota.

Although this case involved the District Court's repudiation of the RIAA's "making available" theory, Ms. Thomas-Rasset's attorneys have sought to waive that issue on appeal, and confine the appeal to the issue of the unconstitutionality of the RIAA's statutory damages theory.

Notice of arguments (PDF)

The only appellate briefs of which we are aware are the following:

RIAA brief
Amicus brief of EFF, Public Knowledge, et al
MPAA Amicus brief
DOJ Appellee Brief
Thomas-Rasset Reply Brief

If anyone is aware of other briefs, please advise.

[Ed. note. I cannot for the life of me understand why Ms. Thomas-Rasset's lawyers wanted to waive the "making available" issue, since [1] the RIAA is clearly dead wrong in its arguments, [2] the District Court was dead right in its holding on this issue, and [3] the 8th Circuit is one of the appellate courts that has weighed in on this issue, holding explicitly that a violation of the distribution right requires actual dissemination of actual copies, not merely an "offer" to distribute. Their brief attempting to waive the issue may or may not succeed in taking the issue out of play; we shall see. -R.B.]

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In SONY BMG Music v Tenenbaum, defendant files request for new trial

In SONY BMG Music Entertainment v. Tenenbaum, defendant Joel Tenenbaum has filed a request for a new trial with proper jury instructions on the subject of statutory damages.

Amended further submission of defendant (request for new trial

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