Recording Industry vs The People: July 2012

Tuesday, July 31, 2012

Jon Newton is baaaaaack

Jon Newton, scourge of the entertainment cartels and former owner/editor of Canadian freedom of speech advocacy site p2pnet, is back with a new blog -- http://www.myblogdammit.net
(The RSS feed for the site is http://www.myblogdammit.net/?feed=rss2)

Jon has been a great friend to this blog, and to the victims of the RIAA and movie industry bullying.

He had to stop publishing after suffering two heart attacks, a quadruple coronary bypass and a stroke.

Jon is one of the original supporters of Anonymous. http://anonnews.org/external-news/item/160/

He was also the defendant in a milestone defamation court case which, had it succeeded, would’ve put a permanent chill on the Internet in Canada with repercussions echoing around the world.
http://www.myblogdammit.net/?p=457

“I'll still be focusing on freedom of expression on and off-line, and the ongoing adventures of Anonymous", he says.

Jon's most recent post centers on the missing RIAA site.
http://www.myblogdammit.net/?p=765

Jon can be followed on Twitter as @jonnewton8

Ray Beckerman, PC

Judge concerned about "indicia of improper conduct by plaintiffs' counsel" in In re BitTorrent Adult Film Copyright Infringement Cases

In In re BitTorrent Adult Film Copyright Infringement Cases, in Central Islip, Magistrate Judge Gary R. Brown has again become concerned with "indicia of improper conduct by plaintiffs' counsel", and directed plaintiff to provide a sworn response to the Court's list of questions.

July 31, 2012, Order

Commentary & discussion:

Technology & Marketing Law Blog

Ray Beckerman, PC

Monday, July 30, 2012

Plaintiff files opposition to Doe #41's motion in Patrick Collins v Does 1-45

Plaintiff has filed its memorandum in opposition to defendant Doe #41's motion to sever, dismiss, and quash, in a Manhattan BitTorrent download case, Patrick Collins Inc. v. Does 1-45

Plaintiff's memorandum of law in opposition to motion by Doe #41

Ray Beckerman, PC

Sunday, July 29, 2012

Plaintiff files opposition papers to motion by Doe #8 in Patrick Collins Inc v Does 1-45

In Patrick Collins Inc. v. Does 1-45, the plaintiff has filed its papers responding to the motion to quash filed by pro se defendant Doe #8.

Plaintiff's time to respond to a separate motion filed by defendant Doe #41 has not run yet.

Plaintiff's memorandum of law responding to motion by defendant Doe #8

Ray Beckerman, PC

Tuesday, July 24, 2012

Pro se litigant, Doe #8, moves to quash in Patrick Collins Inc v Does 1-45

In Patrick Collins v. Does 1-45, a second Doe has moved to quash, this one appearing pro se and filing his or her motion through the Pro Se Clerk's office.

Doe #8 motion to quash

Ray Beckerman, PC

Monday, July 23, 2012

Doe #41 moves to quash, sever, dismiss in Patrick Collins Inc v. Does 1-45

In a Manhattan bittorrent downloading case, Patrick Collins Inc v. John Does 1-45, Doe #41 has filed a motion to sever John Does 2-45, dismiss the complaint as to them, and quash the related subpoenas.

Notice of Motion
Memorandum of Law
Doe #41 Declaration
Morlan Ty Rogers Affidavit

Ray Beckerman, PC

Robertson motion for summary judgment denied, lawyers' motion for leave to withdraw granted, in Capitol v MP3Tunes

In Capitol Records v. MP3Tunes, defendant Michael Robertson's motion for summary judgment has been denied, and his attorneys' motion for leave to withdraw has been granted.

July 23, 2012, Order denying defendant Robertson's motion for summary judgment, granting attorneys' motion for leave to withdraw

Ray Beckerman, PC

Tuesday, July 17, 2012

District Judge confirms report of Magistrate Lindsay in Patrick Collins v Does 1-11

In Patrick Collins, Inc. v. John Does 1-11, District Judge Joseph F. Bianco has adopted the report and recommendations of Magistrate Judge Arlene R. Lindsay, whose decision followed that of In re BitTorrent.

July 12, 2012, order of Judge Joseph F. Bianco, dismissing, severing, and quashing

Ray Beckerman, PC

Friday, July 13, 2012

John Doe #4 strikes back... files reply memo 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 filed his reply memo today, further supporting his motion to quash the subpoena, and to sever and dismiss the claim against him.

Defendant John Doe #4's Reply Memorandum of Law

Ray Beckerman, PC

How Big Music Threatened Startups and Killed Innovation ~ Report

Interesting article in Torrent Freak:

An unprecedented new report has detailed how the destruction of Napster chilled a decade’s worth of innovation in the music industry. Through interviews with 31 CEOs, company founders, and VPs who operated in digital music during the period, we hear how Big Music collapsed startups, turned down ‘blank check’ deals, and personally threatened innovators with ruination for both them and their families.

By interviewing 31 CEOs, company founders and VPs who operated in the digital music scene during the past 10 years, Associate Professor Michael A. Carrier at Rutgers University School of Law has produced a most enlightening report on the decade long aftermath of the Napster shutdown.

The interviewees are no lightweights. Included are former Napster CEO Hank Bank, Imeem founder Dalton Caldwell, Seeqpod founder Kasian Franks, Real Networks founder Rob Glaser, Scour VP & General Counsel Craig Grossman, former Gracenote CEO David Hyman, AudioGalaxy founder Michael Merhej, founder of MP3Tunes Michael Robertson, former RIAA CEO Hilary Rosen, and numerous venture capitalists and label execs.

The result is an unprecedented report on how the shutdown of Napster chilled innovation, discouraged investment, and led to a climate of copyright law-fueled fear that pushed technologists and music further apart.

Complete article

Ray Beckerman, PC

Thursday, July 12, 2012

Dish Network v ABC to continue

In the declaratory judgment action brought in Manhattan by Dish Network against ABC, CBS, NBC, and Fox, the Court has ruled that the action will be discontinued as to Fox, so that the issues between Dish and Fox can be litigated in California, in a copyright infringement action commenced by Fox hours after the declaratory judgment action had been initiated. The claims against ABC, CBS, and NBC, the Court ruled, would proceed.

July 9, 2012, decision

Ray Beckerman, PC

Sanctions against plaintiff's attorney affirmed by 5th Circuit in Mick Haig v Does 1-670

In Mick Haig Productions v. Does 1-670, one of the BitTorrent download cases against individuals, the US Court of Appeals for the 5th Circuit has affirmed the lower court's award of sanctions against the plaintiff's attorney. The appeals court deplored plaintiff's

strategy of suing anonymous internet users for allegedly downloading pornography illegally using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars - a tactic that he has employed all across the state and that has been replicated by others across the country.

September 9, 2011, District Court decision
July 12, 2012, Decision of US Court of Appeals for the Fifth Circuit

Commentary & discussion:

Slashdot

Ray Beckerman, PC

Defendants' lawyers move for leave to withdraw in Capitol v MP3Tunes

In Capitol Records v. MP3 Tunes, the defendants' counsel have filed a motion for leave to withdraw as counsel, due to the defendants' non payment and filing bankruptcy.

Motion for Leave to Withdraw as Counsel for Defendant
Declaration
Memorandum of Law

Ray Beckerman, PC

Preliminary injunction denied in ABC v Aero

In ABC v. Aero, a case brought by television stations and similar plaintiffs against Aero, Inc., the plaintiffs' motion for a preliminary injunction was denied, by District Judge Alison J. Nathan, in the US District Court for the Southern District of New York, in Manhattan.

Aero is a service which enables subscribers to view television programs on their computers contemporaneously with their over-the-air broadcasts, and which operates much like a DVR.

The Court rejected plaintiffs' arguments seeking to distinguish the 2nd Circuit holding in Cartoon Networks v. CSC Holdings, which upheld Cablevision's DVR service.

July 11, 2012, opinion

Ray Beckerman, PC

Wednesday, July 11, 2012

Malibu Media v Does 1-20 voluntarily dismissed because time period for which ISP's kept records elapsed

In Malibu Media v. Does 1-20, a Central Islip case, the plaintiff voluntarily dismissed the case, because the time period for which the ISP's kept records had elapsed.

According to an exhibit in plaintiff's motion papers, the ISP's were Optimum Online and Verizon, and the alleged downloads took place during the period November 22, 2011, through February 9, 2012.

So ordered notice of voluntary dismissal without prejudice
Exhibit B to declaration of Tobias Fieser

Ray Beckerman, PC

Monday, July 09, 2012

Negligence claim in BitTorrent download case dismissed on preemption grounds

In Liberty Media v. Tabora, the Court has granted defendant's motion to dismiss the complaint, on the grounds of:

-absence of copyright registration, and
-preemption of the negligence claim by the Copyright Act

July 9, 2012, Decision of Hon. Lewis A. Kaplan, granting defendant's motion to dismiss complaint

Commentary & discussion:

Slashdot
Technology & Marketing Law Blog

Ray Beckerman, PC

Saturday, July 07, 2012

BitTorrent plaintiff files opposition, in Malibu Media v Does 1-5

In Malibu Media v. Does 1-5, a BitTorrent downloading case, the plaintiff has filed papers opposing defendant John Doe #4's motion to dismiss, sever, and quash.

The motion papers include a declaration by a "forensic investigator", employed by a company in Germany, who makes claims about the technology he uses.

Plaintiff's memorandum of law in opposition
Declaration of Tobias Fieser
Exhibit A
Exhibit B

Commentary & discussion:

Slashdot

Ray Beckerman, PC

Friday, July 06, 2012

RIAA moves to strike Tenebaum's amended further submission

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has moved to strike defendant's "amended further submission".

Plaintiff's motion to strike amended further submission

Ray Beckerman, PC

CNN: Will your Internet provider be spying on you?

Interesting article from CNN:

By Douglas Rushkoff, CNN Contributor

updated 10:03 AM EDT, Fri July 6, 2012

Internet service providers and media giants want to fight illegal downloading by monitoring it at the source - your computer.

STORY HIGHLIGHTS

Douglas Rushkoff: Your Internet service provider may soon begin monitoring your account
He says new alliance of Fox, Disney, Sony, big ISPs to detect, stop online piracy
He says new plan lets ISP's keep track of, punish offenders, but could take in the innocent
Rushkoff: Subscribers will be losing expectation of privacy from their own service providers

Editor's note: Douglas Rushkoff writes a regular column for CNN.com. He is a media theorist and the author of "Program or Be Programmed: Ten Commands for a Digital Age" and "Life Inc: How Corporatism Conquered the World and How We Can Take It Back."

(CNN) -- This month, if everything goes according to schedule, your Internet service provider may begin monitoring your account, just to make sure you aren't doing anything wrong with it -- like sharing copyrighted movie or music files. While we might all agree that copyright holders need to be protected, we may not all be equally happy about all of our communications being checked for violations. People and businesses who are not doing anything illegal may still have some things they wish to hide from their Internet access providers.

Under normal circumstances, your Internet service provider, or ISP, tries to protect you and your data from spying eyes. Cablevision, Time Warner Cable (an independent company no longer directly affiliated with TimeWarner, the parent of CNN and this site) and Comcast utilize all sorts of software to keep the connections between our modems and their servers safe. They also encourage us to keep our home networks secure from eavesdroppers.

But what are we supposed to do when the eavesdropper is the ISP itself?

Complete article

Ray Beckerman, PC

Wednesday, July 04, 2012

Judge Oetken: "fact that a copyrighted work...downloaded from a certain IP address does not... mean that.. owner of that IP address was...infringer"

In Malibu Media v. Does 1-5 / 12cv2950 SDNY, District Judge J. Paul Oetken, in his decision granting leave to take discovery, made the following observation:

The fact that a copyrighted work was illegally downloaded from a certain IP address does not necessarily mean that the owner of that IP address was the infringer. See e.g., In re BitTorrent Adult Film Copyright Infringement Cases, 2012 WL 1570765, at *3 ("[T]he 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."). Indeed, the true infringer could just as easily be a third party who had access to the internet connection, such as a son or daughter, houseguest, neighbor, or customer of a business offering internet connection. There is real risk that defendants might be falsely identified and forced to defend themselves against unwarranted allegations.

June 1, 2012, Memorandum and Order

Ray Beckerman, PC

Supplemental complaint permitted in Eminem case against Universal, FBT v Aftermath

In FBT v. Aftermath, the case in which Eminem succeeded in establishing that defendant Universal Music was required to pay royalties on digital downloads at the higher "license" rate, the Court has recently granted plaintiff's motion to file a supplemental complaint, relating to foreign "licenses".

June 27, 2012, order granting leave to file supplemental complaint

Ray Beckerman, PC

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