Recording Industry vs The People: April 2013

Tuesday, April 30, 2013

Viacom appeals from judgment dismissing YouTube case

Judgment has been entered dismissing Viacom v. YouTube, and some of the losing plaintiffs have filed a notice of appeal.

Wednesday, April 24, 2013

Plaintiff in Oregon ordered to show cause why John Doe cases should not be severed, Voltage v Does 1-198

In a group of Oregon cases brought by plaintiff Voltage Pictures against more than 600 "Doe" defendants, the Court has ordered plaintiff to show cause why the cases should not be severed.

Order to show cause why cases should not be severed, April 10, 2013, Hon. Ann Aiken, District Judge

Friday, April 19, 2013

Motion to sever, dismiss & quash granted in NJ case, Malibu Media v John Does 1-10

In a Newark, New Jersey, case, Malibu Media v. John Does 1-10, the Court has granted the motions of several defendants to sever, to dismiss the complaints, and to quash the subpoena.

April 19, 2013, Opinion and Order, Hon. Stanley R. Chesler, District Judge

Thursday, April 18, 2013

YouTube wins again

Once again, YouTube has won, in Viacom v. YouTube.

The plaintiffs had previously convinced the Second Circuit to remand the case to the district court for determination of some factual issues relating to specific videos. District Judge Louis L. Stanton has now resolved all of the issues in favor of YouTube, and once again dismissed the case.

In doing so he held that
-YouTube did not have knowledge or awareness of any specific infringement
-YouTube did not engage in "willful blindness" towards any specific infringement
-YouTube did not induce its users to commit copyright infringement or otherwise interact with its users to a point where it might be said to have participated in their infringements
-YouTube's syndication of videos did not involve manual selection or delivery of videos

April 18, 2013, Opinion Granting Summary Judgment to Defendant After Remand, Hon. Louis L. Stanton

Commentary & discussion:

Slashdot

Tuesday, April 16, 2013

2nd Circuit affirms denial of plaintiffs' preliminary injunction motion in WNET v Aereo

In a rare interlocutory appeal, in WNET v. Aereo, Inc., the Second Circuit has affirmed the district court's denial of plaintiff broadcasters' motion for preliminary injunction, following its earlier ruling against the MPAA in Cartoon Networks v. CSC Holdings.

The 62 page decision (35 pages for main decision, 27 pages for dissenting opinion) concluded that Aereo's system for allowing individual users to record and replay broadcasts did not constitute a "public performance" and therefore did not implicate the "public performance" right.

Since the plaintiffs were unlikely to prevail on the merits, the Court held, they were not entitled to a preliminary injunction.

Opinion of US Court of Appeals 2nd Circuit

Thursday, April 11, 2013

California BitTorrent case dismissed with prejudice for failure to post undertaking, AF v Trinh

A San Francisco case, AF Holdings v. Trinh, has been dismissed with prejudice, based upon the plaintiff's failure to post an undertaking in the amount of $47,500.

Subsequent to the dismissal, defendant has moved for his attorneys fees.

November 9, 2012, Order, directing plaintiff to file undertaking in amount of $47,500, Hon. Charles R. Breyer, District Judge
February 25, 2013, Order, granting motion to dismiss with prejudice, Hon. Charles R. Breyer, District Judge
Declaration in support of motion for attorneys fees

Monday, April 08, 2013

Court sua sponte severs as to Doe defendants in Ohio cases, Safety Point v Does 1-14 et al

In a group of Cleveland, Ohio, cases, Safety Point Products v. Does 1-14, and three other cases, District Judge James S. Gwin of the Northern District of Ohio has sua sponte severed as to all John Does, on the grounds that "participation" in a BitTorrent "swarm" is too imprecise a factor to justify joinder under the Federal Rules and the Court was "unconvinced that Plaintiff has even pleaded a prima facie case of copyright infringement", as well as on the alternative ground that permitting joinder "violates a sense of fairness".

The Court further ruled that, even apart from the joinder question, it "would hesitate to subpoena the ISPs without further information regarding Defendants’ alleged conduct."

Opinion and Order, District Judge James S. Gwin, April 4, 2013

Tuesday, April 02, 2013

"ReDigi Loses: You Can't Resell Your MP3s (Unless You Sell Your Whole Hard Drive)" ~ TechDirt

Article by Mike Masnick in TechDirt:

ReDigi Loses: You Can't Resell Your MP3s (Unless You Sell Your Whole Hard Drive)
from the a-big-first-sale-loss dept

This is hardly a surprise at all. In fact, we expected this kind of ruling all along. ReDigi, the company that was trying to build a "market" around "used MP3s" has lost at the district court. As you may recall, ReDigi tried to set up a system that monitors your own files, so that if you "sell" a used MP3, you have to make sure it's been removed from your own system. As you might imagine, that system is not foolproof, but some effort has been made (and it's only allowed for reselling MP3s ReDigi can prove you've purchased, such as via iTunes, and not for files just ripped from CDs). While I fully expected ReDigi to lose, the ruling is still fairly distressing in just how badly it distorts other parts of the law, which may harm other, even more reasonable uses. Hopefully, ReDigi will appeal and fight back against the more extreme interpretation from the district court here.

First, the court looks into the question of whether or not a transfer of a copyrighted file, where only one file remains at the end, still violates the "reproduction" right. That is, if Bob transfers a file to Alice, and Bob's copy of the file is immediately deleted, is that still a reproduction under the Copyright Act? The court says yes:......

Complete article

Opinion, March 30, 2013

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