The Motion Picture Association (MPAA) has joined up with the RIAA in the fight against Tenise Barker, putting in an amicus brief of its own arguing that the RIAA is right, and that merely "making available" is a copyright infringement.
MPAA Amicus brief*
*Published online at Internet Law & Regulation
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
In its briefs responding to the amicus curiae briefs of the Electronic Frontier Foundation, the U.S. Internet Industry Association, and the Computer & Communications Industry Association, the RIAA argues that merely having a shared files folder with copyrighted material in it -- even if the files in it were legally authorized copies, and even if the files were never uploaded and copied by anyone from the shared files folder -- is in and of itself a copyright infringement.
RIAA Brief in Opposition to Amicus Brief of CCIA and USIIA*
RIAA Brief in Opposition to Amicus Brief of Electronic Frontier Foundation*
*Published online at Internet Law & Regulation
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
Well it appears that the mystery has been solved in Atlantic v. Does 1-25.
The RIAA's lawyers wrote to the Court on March 3rd indicating that the earlier dismissal as to John Doe #8 was a mistake, and requested an order vacating the dismissal.
They also say that they thought they had sent a copy of the letter, requesting the order, to us (John Doe's lawyers), and apologized for having failed to do so.
The RIAA's lawyers also stated that they have received no information from the ISP about John Doe #8, and that the stay has not been violated.
So now the case is back on, and we are awaiting a decision from Judge Swain.
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
The mystery deepens.
We previously reported that the RIAA had discontinued its case against John Doe #8 in Atlantic v. Does 1-25 (The case in Manhattan federal court before Judge Swain, in which defendant John Doe #8 had moved to vacate the court's ex parte discovery order, affidavits of programmer Zi Mei were presented challenging the Jonathan Whitehead declarations, and Mr. Whitehead later corrected an "error" in his submissions).
Notice of Voluntary Dismissal*
We (Mr. Doe's counsel) were never told why this discontinuance had occurred.
We were concerned, because usually the RIAA discontinues only when the name and address information of "John Doe" has been turned over. But for that to have occurred here, it would probably mean that the ISP and the RIAA would have been violating a court-ordered stay.
We made several inquiries to the RIAA's counsel, as to what was going on, but they did not respond.
Today all of a sudden we received, from the Court, a copy of an order indicating that the earlier dismissal has been vacated -- i.e., the case has been reinstated as to John Doe #8. The proposed order, which the Judge signed, appeared to have been drafted by the RIAA's lawyers.
Order Vacating Voluntary Dismissal*
While it is not unusual for a proposed order to be prepared by the attorneys for a party, and submitted to the Court with an application for the Court to sign the proposed order, it is highly unusual for it to be submitted to the Court without notifiying the other side and without sending copies to the other side of the basis for the application.
We will keep you posted if we get any additional information.
-R.B.
* Published online at Internet Law & Regulation by Pike & Fischer.
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
Came across this report in FMQB:
RIAA Bans The Reselling Of iPods With Preloaded Music
February 10, 2006
Although it may seem like a feasible idea, the Recording Industry Association of America (RIAA) says that reselling an iPod or MP3 player with music already preloaded on it is illegal.
"Selling an iPod preloaded with music is no different than selling a DVD onto which you have burned your entire music collection," the RIAA said in a statement to MTV.com. "Either act is a clear violation of U.S. copyright law. The RIAA is monitoring this means of infringement. In short: seller beware." Many people have been selling their used iPods online with thousands of songs preloaded on them.
Andrew Bridges, a lawyer for eBay that specializes in copyright and trademark law, told MTV.com, "It really depends on individual circumstances. I'm not sure the law is settled. If I'm a college student and I want to supplement my income by buying 100 iPods and selling them at a significant premium, that's probably not going to fly. But if I've had my iPod Shuffle for two years and I'm tired of it and I go out and buy a 60 gig video iPod and want to sell my old Shuffle, but don't want to purge the music first, that's probably legal."
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
A great mystery:
RIAA has discontinued its case against John Doe #8 in Atlantic v. Does 1-25.
Notice of Voluntary Dismissal (Published at Internet Law & Regulation)
That is the case in Manhattan federal court before Judge Swain, in which defendant John Doe #8 had moved to vacate the court's ex parte discovery order, affidavits of programmer Zi Mei were presented challenging the Jonathan Whitehead declarations, and Mr. Whitehead later corrected an "error" in his submissions.
We don't know why this discontinuance has occurred.
Usually RIAA does that only when the name and address information has been turned over. But for that to have occurred here, it would probably mean that the ISP and the RIAA would have been violating a court-ordered stay.
Possibly they discontinued because they felt they would lose the motion and did not want to set a bad precedent.
We will keep you posted if we get any additional information.
-R.B.
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
A new dismissal motion has been made, this time in Texas, in Arista Records v. Greubel, in the United States District Court, Northern District of Texas, Fort Worth Division.
In his motion papers Mr. Greubel argues that:
-the RIAA's attempt to recover $750 per song, while its actual damages are only 99 cents per song, is unconstitutional;
-since 2003 the RIAA has been actively engaged in "extortive and predatory litigation tactics" and misused the Courts to "create a veil of fear designed to frighten average consumers into paying thousands of dollars in settlements to avoid prolonged litigation";
-the RIAA's pleadings are "smoke and mirrors";
-the complaint lacks sufficient specificity;
-the "distribution right" upon which the RIAA vaguely relies does not apply to electronic transmissions; and
-even if it did, the mere act of making sound recordings available online does not constitute an actionable infringement.
Motion to Dismiss Complaint (Published at Internet Law & Regulation)
Mr. Greubel is represented by:
Mudd, Charles Lee, Jr.
Law Offices of Charles Lee Mudd Jr.
3344 North Albany Avenue
Chicago, Illinois 60618
773.588.5410
773.588.5440 (facsimile)
cmudd@muddlawoffices.com
Browning, John G.
Browning & Fleishman, P.C.
701 Commerce St., Suite 510
Dallas, Texas 75202
214-752-4130 phone
469-227-9010 fax
Email browninglaw@sbcglobal.net
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
In Motown v. Does 1-99, pending before Judge Naomi Reice Buchwald in the United States District Court, Southern District of New York, John Doe #48 has moved to vacate the ex parte discovery order obtained by the RIAA.
The judge has stayed the order and any subpoenas which may have been served on Time Warner Cable pursuant to the order, until the motion has been decided. The stay is applicable to all 99 defendants.
John Doe #48 also moved for (a) severence and dismissal of the case as to John Does 2-99, and (b) quashing of the subpoena on the ground that the complaint fails to state a claim for relief under the Copyright Act.
The docket number is 05CV9112(NRB).
RIAA's opposition papers are due March 17th.
Following documents are published online at Internet Law & Regulation:
Notice of motion
Affidavit of Morlan Ty Rogers
Affidavit of Zi Mei
Memorandum of Law
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
A new amicus curiae brief has been filed in Elektra v. Barker, pending before Judge Karas in the United Stated States District Court, Southern District of New York, by the Computer & Communications Industry Association and the US Internet Industry Association.
In their brief these computer and internet associations argue that
-the RIAA's brief offers a "misguided analysis of the section 106(3) distribution right";
-the RIAA is seeking to expand the concept of "distribution" to incorporate an overbroad concept of "making available";
-the RIAA's "[e]fforts ... to rewrite copyright law should not be countenanced...."; and
-the RIAA has overlooked the fact that in order for there to be a distribution there have to be "copies" or "phonorecords" and they have to be distributed to the public by sale, or other transfer of ownership, or by renting, leasing, or lending.
They pointed out that
Plaintiffs' proposed expansion of the distribution right would sweep into the reach of copyright law many activities not now covered by copyright law . Under such an elastic interpretation and ill-d efined standard, the Internet connections and equipment that members of Amici furnish may render them vulnerable to accusations that they "make available" a variety of
content, including copyrighted materials, to users . Such activities, e.g., providing Internet connections, however, do not constitute distributions within the scope of section 106(3) . If a vague conception of "making available" were substituted for the clear statutory provision of section 106(3), the boundaries of the right would become indeterminate and unpredictable, creating chilling effects on members of Amici and virtually every other participant on the Internet. For example, companies routinely include in their web pages hyperlinks that enable persons to navigate easily to other sites throughout the web by use of browser software. Indeed,
the web is a collection of hyperlinks . Even though the use of hyperlinks makes
content located elsewhere available to a web user, it does not constitute a distribution of that content under section 106(3) [See brief, pp. 10-11]
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
