Individual defendants found liable in Grooveshark case

In UMG Escape Media, the Court has granted summary judgment finding the individual defendants to be liable for copyright infringement.

September 29, 2014, decision granting summary judgment against individual defendants

New ruling in Capitol v MP3Tunes, reduces punitive damages, denies Robertson motion for new trial

In Capitol Records v. MP3Tunes, the Judge has denied individual defendant Michael Robertson's motion for a new trial, but reduced the punitive damages award on the state law claims for pre-1972 recordings.

September 29, 2014, Decision, denying motion for new trial, and reducing punitive damages

2nd Circuit OK's scanning whole books for research as fair use in Authors Guild v HathiTrust

In Authors Guild v. HathiTrust, the US Court of Appeals has ruled that scanning whole books for research purposes is fair use.

In HathiTrust, a group of universities took digital scans prepared by Google and stored them in a "digital library".

The library permitted 3 uses of the material:
(1) The public was allowed to search by keyword. The search results showed only the page numbers for the search term and the number of times it appeared; none of the text was visible.
(2) People with disabilities which prevented them from holding books and/or turning pages could be provided access to the full texts.
(3) Members could create a replacement copy of a lost, stolen, or destroyed book if a replacement was not obtainable in the market at a "fair" price.

The Court held the search function to be a fair use, finding that
-the creation of a searchable, full text database is a "quintessentially transformative use";
-it was "reasonably necessary" to make use of the entire works, and to maintain 4 copies of the database;
-the library did not impair the market for the works.

The Court likewise found it to be a fair use to make copies available to the disabled who are unable to access print books.

The Court declined to rule on the replacement book issue, on the ground that the plaintiffs lacked standing to raise that question.

June 10, 2014, Decision, US Court of Appeals, 2nd Circuit

Viacom v Google settled out of court (old news)

I just found out about this today, thanks to an old tweet by Bill Rosenblatt H/T Bill.

Viacom v. YouTube has been settled out of court.

DC Circuit rules no multiple John Doe cases without basis for personal jurisdiction and joinder

In the first appellate decision of its kind, the D. C. Circuit Court of Appeals has dealt a death knell to the type of mass John Doe fishing expedition cases pioneered by the RIAA and carried on by pornographic filmmakers and other high volume plaintiffs seeking the identity of possible defendants.

In AF Holdings v. Does 1-1058, the appeals court overruled the district court's grant of ex parte discovery, ruling that mass John Doe cases could not be brought where there was no known basis for the assertion of personal jurisdiction over the unknown defendants, and on alternative grounds that there could be no joinder merely because defendants allegedly downloaded the same file through BitTorrent and therefore possibly in the same "swarm".

(Ed. note: A cynic might argue that the key difference in this case was that, for a change, the ISP's, and not merely defendants, were challenging the subpoenas; but of course we all know that justice is 'blind'. An ingrate might bemoan the Court's failure to address the key underlying fallacy in the "John Doe" cases, that because someone pays the bill for an internet account that automatically makes them a copyright infringer; but who's complaining over that slight omission? A malcontent like myself might be a little unhappy that it took the courts ten (10) years to finally come to grips with the personal jurisdiction issue, which would have been obvious to 9 out of 10 second year law students from the get go, and I personally have been pointing it out and writing about it since 2005; but at least they finally did get there. And a philosopher might wonder how much suffering might have been spared had the courts followed the law back in 2004 when the John Doe madness started; but of course I'm a lawyer, not a philosopher. :) Bottom line, though: this is a good thing, a very good thing. Ten (10) years late in coming, but good nonetheless. - R.B. )

May 27, 2014, Opinion, US Court of Appeals, DC Circuit

Class action claim against Harlequin Books for e-book royalties upheld by 2nd Circuit

In Keiler v. Harlequin Enterprises, a class action royalty claim on behalf of authors whose works were being distributed as e-books by Harlequin was sustained, and the lower court's dismissal of the complaint reversed.

The complaint alleged that Harlan, in a scheme to deprive the authors of their contractual royalties for e-books, had established a subsidiary, was paying royalties to the subsidiary at a below-market rate, and was paying the authors based on the low receipts of the subsidiary rather than on the actual receipts of Harlan itself.

May 1, 2014, US Court of Appeals for 2nd Circuit

Second Circuit permits interlocutory appeal in Capitol Records v. Vimeo

In Capitol Records v. Vimeo, the Second Circuit has granted both sides' motions for leave to file an interlocutory appeal from the lower court's decision partially granting both sides' motions for summary judgment.

April 9, 2014, Order granting motions for interlocutory appeal, US Court of Appeals, 2nd Circuit

Excellent comment by Andrew Bridges on proposed "making available" right

Andrew Bridges is the fine California attorney who wrote one of the great amicus curiae briefs in Elektra v. Barker, and also wrote an excellent request to file amicus curiae brief in Capitol Records v. ReDigi.

Recently, he submitted this outstanding comment to the Copyright Office on the subject of "making available".

Response of Andrew P. Bridges to the Request for Comments for the Study on the Right of “Making Available.”

"Florida Judge dismisses a Malibu case because Lipscomb failed to establish a connection between an IP address and person" ~ @FightCopyTrolls

Good article on the Fight Copyright Trolls website:

Florida Judge dismisses a Malibu case because Lipscomb failed to establish a connection between an IP address and person
We saw it coming: in less than two months in the Southern District of Florida, a venue where copyright troll Keith Lipscomb’s command and control is located,

Judge Federico Moreno ruled that there is no “good cause” to deviate from Rule 26(d), thus denying early discovery in Malibu Media v. John Doe, 14-cv-20216;

Magistrate Frank Lynch also denied Lipscomb’s motion for ex-parte discovery citing untimely copyright registrations in Malibu Media v. John Doe, 13-cv-14458;

Magistrate Andrea Simonton recommended to sanction Lipscomb in Malibu Media v. Pelizzo, 12-cv-22768;

Judge Ursula Ungaro denied Lipscomb’s routine motion for extension of time to serve the defendant and closed Malibu Media v. John Doe, 13-cv-23714.

In the latter case, on 10/29/2013 the judge sua sponte ordered to show cause why the Court may reasonably rely upon the Malibu’s usage of geolocation to establish the identity of the defendant (and also establish that the defendant may be found within this district).

Lipscomb responded on 11/12/2013, and apparently satisfied Magistrate Torres, to whom Judge Ungaro referred the case. As already mentioned, the case was closed not because of the OSC outcome, but for failure to serve the defendant.

Fast forward to March 2014. On 3/5/2014 in Malibu Media v Doe (FLSD 14-cv-20213), an identical order to show cause was issued by Judge Ursula Ungaro. Lipscomb replied, but this time he was not so lucky: .....

Complete article

Ex-MP3tunes chief held liable in music copyright case ~ Reuters

Reuters reports:

Ex-MP3tunes chief held liable in music copyright case
By Nate Raymond

(Reuters) - The former chief executive of bankrupt online music storage firm MP3tunes was found liable Wednesday for infringing copyrights for sound recordings, compositions and cover art owned by record companies and music publishers once part of EMI Group Ltd.

A federal jury in Manhattan found Michael Robertson, the former MP3tunes chief executive, and the defunct San Diego-based company liable on various claims that they infringed on copyrights associated with artists including The Beatles, Coldplay and David Bowie.

The jurors also found MP3tunes was willfully blind to copyright infringement on its website, in what a lawyer for the recording companies suggested before the verdict would be the first ruling by a jury of its kind.

Complete article

Plaintiffs withdraw their appeal in Viacom v. YouTube

Plaintiffs have withdrawn their appeal from the lower court's grant of summary judgment to YouTube in Viacom v. YouTube

My article on Authors Guild v Google, in e-commerce law reports

Here's my article on Authors Guild v. Google, which appeared at pages 14-15 of Volume 14, Issue 1, of e-commerce law reports (reprinted with permission)

Authors Guild v Google

"Why YouTube's Automated Copyright Takedown System Hurts Artists" ~ TorrentFreak

Interesting article by Ben Jones at TorrentFreak:

Why YouTube's Automated Copyright Takedown System Hurts Artists
By Ben Jones
For some, getting a copyright claim on their YouTube video might be an inconvenience. For others, it’s a massive headache that ignores copyright law… in the name of enforcing copyright law.

Day in and day out automated bots detect and report millions of alleged copyright infringements, which are then processed by the receiving site without a human ever looking at them.

Needless to say, this process is far from flawless. In the past we’ve covered countless false, inaccurate, and just plain hilarious DMCA claims, but YouTube’s takedown process is particularly problematic.

Complete article

Motions for summary judgment and spoliation sanctions filed in Grooveshark case, Arista v Escape Media

In the RIAA's case against Grooveshark, Arista Records v. Escape Media, the RIAA has filed a motion for summary judgment and a motion for judgment based on spoliation of evidence.

Motion for spoliation sanctions, memorandum of law
Motion for summary judgment, memorandum of law

Capitol Records v MP3 Tunes, trial to start Tuesday February 25th in Manhattan

The trial in Capitol Records v. MP3 Tunes is scheduled to begin Tuesday, February 25th, in Manhattan, at the federal courthouse located at 500 Pearl St., New York, NY 10007-1312, courtroom 20B.

Motion to sever and dismiss granted in Killer Joe Nevada v Does 1-39

Hat tip to Ernesto at TorrentFreak:

In Killer Joe Nevada v. Does 1-39, and four similar BitTorrent downloading cases, in the Southern District of Iowa, the cases were dismissed and severed as to all defendants other than Doe 1, by District Judge Stephanie M. Rose. Doe #18 in one of the cases had moved to sever and dismiss. The court granted that Doe's motion, and sua sponte severed and dismissed in the other cases as well.

December 20, 2013, Decision, Severing and Dismissing as to Does 2-39, Hon. Stephanie M. Rose, US District Judge

Commentary & discussion:

TorrentFreak

Motion to certify order for interlocutory appeal granted in Capitol Records v. Vimeo

In Capitol Records v. Vimeo, the Court has certified its September, 2013, decision of the respective summary judgment motions for an interlocutory appeal.

The Court also partially granted defendant's motion for reconsideration seeking summary judgment dismissing the case as to additional videos, and granted plaintiff's motion for leave to amend its complaint.

December 31, 2013, decision of Hon. Ronnie Abrams

Empire State Building sues photographer for photographing topless model

In ESRT v. Henson, the Empire State Building has sued a photographer for photographing a topless model on the building's observation deck.

Summons and complaint

Summary judgment motions denied without prejudice in ABC v Aereo & WNET v Aereo

In ABC v. Aereo and WNET v. Aereo, the District Court has denied both summary judgment motions on the grounds that (a) it would be more efficient for them to be made after discovery is completed and (b) it might be more efficient to determine them after the U.S. Supreme Court has weighed in on the legal issues, after having granted certiorari to review the preliminary injunction ruling.

January 13, 2014, Decision, Denying Both Summary Judgment Motions Without Prejudice, Hon. Alison J. Nathan, District Judge

Supreme Court grants cert in Aereo cases

The Supreme Court has granted certiorari in WNET v. Aereo Inc.

The Washington Post reported:

Supreme Court to take on high-stakes TV dispute

The Supreme Court agreed Friday to decide a high-stakes dispute between the nation’s broadcast networks and an upstart Web company that is providing live television programming over the Internet.

Both the networks and Barry Diller-backed Aereo asked the justices to settle the legal fight that could radically change the way live television is delivered to American consumers and disrupt an economic model that accounts for billions of dollars in fees for the broadcasters.......

Complete article

The Second Circuit opinion to be reviewed was reported by us here