Recording Industry vs The People: August 2012

Tuesday, August 28, 2012

Internet tv streaming service held not to be a "cable system" therefore unable to obtain compulsory license in WPIX v ivi

In WPIX v. ivi, the 2nd Circuit has held that an internet tv streaming service is not a "cable system", and therefore not able to obtain the compulsory retransmission license available to cable systems.

August 27, 2012, decision of US Court of Appeals for the 2nd Circuit

Ray Beckerman, PC

Doe 1 files reply memo supporting motion to dismiss for failure to state claim in Digital Sin v Does 1-27

In Digital Sin, Inc. v. Does 1-27, plaintiff has filed its opposition papers, and defendant Doe 1, who moved to dismiss for failure to state a claim, has filed his reply memorandum of law.

Plaintiff's opposition memorandum of law
Defendant's reply memorandum of law

Ray Beckerman, PC

Friday, August 24, 2012

Motion to sever, dismiss, and quash denied in Malibu Media v Does 1-5

Defendant Doe #4's motion to dismiss, sever, and quash has been denied, in Malibu Media v. Does 1-5.

August 24, 2012, Decision

Ray Beckerman, PC

Thursday, August 23, 2012

Doe #41's motion to quash, sever & dismiss granted in Patrick Collins Inc v Does 1-45

In Patrick Collins Inc v. Does 1-45, a Manhattan BitTorrent download case, the motion by defendant Doe #41 to sever, dismiss, and quash, has been granted by District Judge Barbara S. Jones.

August 23, 2012, Order granting Doe #41 motion to sever, dismiss, and quash, Hon. Barbara S. Jones

Ray Beckerman, PC

Motion to reduce $675,000 verdict denied in SONY v Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the new District Judge assigned to the case has denied defendant's motion to set aside the verdict on common law remittitur grounds or on constitutional grounds.

August 23, 2012, decision of Hon. Rya W. Zobel

Commentary & discussion:

Slashdot
Digital Music News

Ray Beckerman, PC

Friday, August 17, 2012

Doe #1 moves to dismiss for failure to state a claim, in Digital Sin v Does 1-27

In Digital Sin, Inc. v. Does 1-27, defendant Doe #1 has moved to dismiss the complaint for failure to state a claim.

Doe #1 Motion to Dismiss: Notice of Motion, Declaration, Exhibits
Doe #1 Motion to Dismiss: Memorandum of Law

Ray Beckerman, PC

Plaintiff's lawyer blames it on the paralegal in bid to avoid sanctions in In Re BitTorrent

In In re BitTorrent Adult Film Copyright Infringement cases, in which the Court has been concerned about "indicia of improper conduct" by plaintiff's counsel, the plaintiff's lawyer has filed a declaration claiming that the misconduct was the result of an error, and was not intentional. He stated that there was a mistake by the paralegal, and that he failed to catch the mistake.

Kotzker declaration

Ray Beckerman, PC

Saturday, August 11, 2012

All subpoenas quashed in Discount Video Center v Does 1-29

In a Massachusetts case, Discount Video Center v. Does 1-29, the Court quashed all subpoenas served, since the plaintiff had misleadingly represented that it had sued all of the 29 ISP subscribers, when in fact it could only have sued the unknown copyright infringers, not the subscribers.

August 10 2012, Memorandum and Order Quashing All Subpoenas

Ray Beckerman, PC

Friday, August 10, 2012

Order to show cause issued in In re BitTorrent Adult Film Copyright Infringement Cases

In In re BitTorrent Adult Film Copyright Infringement Cases, Magistrate Judge Gary Brown has ordered the Doe #1 defendants to show cause at a hearing why their identities should not be divulged to the plaintiffs.

Notice and Order to Show Cause dated August 10, 2012

Ray Beckerman, PC

Thursday, August 09, 2012

myVidster's linking to, and framing of, infringing videos, held not likely to constitute direct or contributory infringement

In Flava v. Gunter, an injunction case against myVidster.com, a social bookmarking site, the US Court of Appeals for the 7th Circuit reversed a preliminary injunction which had been granted by the district court against myVidster, holding that the site's linking to, and framing of, infringing videos hosted elsewhere, did not likely constitute either a direct or a contributory infringement of plaintiff's rights in the videos.

August 2, 2012, opinion

Ray Beckerman, PC

Tuesday, August 07, 2012

Doe #1 files pro se motion to quash & plaintiff opposes in Patrick Collins v Does 1-45

A third John Doe has filed a motion to quash in
Patrick Collins Inc. v. Does 1-45, this one pro se, and the plaintiff has filed a memorandum of law opposing the motion.

Doe #1 motion to quash
Plaintiff's opposition memorandum

Ray Beckerman, PC

Monday, August 06, 2012

John Doe #41 files reply memo in Patrick Collins v Does 1-45

In Patrick Collins Inc. v. Does 1-45, Doe #41 has filed his or her reply memorandum.

Reply Memorandum of Doe #41

Ray Beckerman, PC

Friday, August 03, 2012

Motion for discovery granted in Digital Sins v Does 1-27

In Digital Sins v. Does 1-27, the plaintiff's ex parte motion for discovery has been granted.

June 6, 2012, Opinion & Order granting discovery

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