Recording Industry vs The People

Wednesday, January 09, 2008

Petition for Certiorari filed in Zomba v. Panorama (6th Cir. Karaoke case) involving statutory damages 44 times actual damages

In Zomba v. Panorama, a 6th Circuit karaoke copyright infringement case which was cited in the papers in Capitol v. Thomas, on the issue of unconstitutionally excessive statutory damages, a petition for certiorari has been filed with the United States Supreme Court.

The petition maintains that a statutory damages award which is 44 times the actual damages is unconstitutional.

At page 32 of the brief the petitioner describes the flood of 'statutory damages' litigation that has descended upon the federal judicial system:

C. Copyright holders are flooding the courts with statutory damage cases.

This case illustrates an alarming trend – large disproportionate civil statutory damage awards in copyright cases. Professional copyright trade organizations and lobbying organizations like the RIAA (Recording Industry Association of America),
NMPA (National Music Publishers Association ), and MPAA (Motion Picture Association of America), along with foreign or multinational trade organizations, like the International Federation of the Phonographic Industry (IFPI) , and the World Intellectual Property Organization (WIPO), have engineered increases in
statutory damage limits all over the world, including 17 U.S.C. §504, and have at the same time, mounted well financed and highly publicized campaigns against
both professional and consumer infringers.

One example of this was the well publicized case of UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000), in which the RIAA, on behalf of the five major recording labels, brought suit against website MP3.com and sought in excess of $250,000,000 in statutory damages. In granting partial summary judgment in favor of the RIAA, the judge observed that internet companies “may have a misconception that, because their technology is somewhat novel, they are somehow immune from the ordinary applications of laws of the United States, including copyright law,” but that “[t]hey need to understand that the law’s domain knows no such limits.” UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000). See also http://archives.cnn.com/2000/LAW/09/06/mp3.lawsuit.01/.

Another example was the well publicized campaign of RIAA-sponsored copyright litigation against thousands of individual music downloaders, which recently spawned a statutory damage award of $220,000 for downloading 24 songs that had a retail
value of less than $24. Capital Records v. Thomas, supra. See also http://recordingindustryvsthepople.blogsot.com, a website that tracks RIAA instituted
litigation. Of note is the admission made by the RIAA in Capitol Records v. Thomas that most of the proceeds of these litigations are earmarked to file more litigations by the RIAA on behalf of its members.

The defendant is represented by Lawrence E. Feldman, located in Elkins Park, Pennsylvania.

Petition for Certiorari
Alternate link*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

Tuesday, January 08, 2008

Washington Post issues "correction" (???)

The Washington Post has now issued a "correction", saying that its column

incorrectly said that the recording industry "maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer." In a copyright-infringement lawsuit, the industry's lawyer argued that the actions of an Arizona man, the defendant, were illegal because the songs were located in a "shared folder" on his computer for distribution on a peer-to-peer network.

Recording Industry vs. The People stands by its previous statements on the subject.

Mr. Fisher was right. The Washington Post "correction" is wrong.

Cary Sherman's "retraction" of (a) what his lawyers said in the Atlantic v. Howell supplemental brief; (b) what SONY BMG's chief of litigation testified to, under oath and in the presence of the jury, at the Capitol v. Thomas trial; and (c) Richard Gabriel's cross examination of Jammie Thomas about her failure to ask the record companies for permission to copy her cd's onto her hard drive are:

-of no legal effect unless and until "retractions" are filed in those court cases; and
-completely lacking in credibility.

They did not come about until after stock prices fell in response to the Motley Fool article decrying the RIAA's position.

Initial article on RIAA response to judge's question as to whether copies on the hard drive were themselves "unlawful", and subsequent editor's note
Our Slashdot post on the same subject
Our post on Washington Post article
Motley Fool article
Cary Sherman's on-air "retraction" saying that Jennifer Pariser "misspoke"
Question and answer on "unlawfulness" in Atlantic v. Howell
Wired.com article about Jennifer Pariser "misspeaking" and Richard Gabriel crossexamining based on that "misspeaking"

Commentary and discussion:

p2pnet.net
Wired.com

Monday, January 07, 2008

Format changes in "Recording Industry vs The People"

I've been told that my blog needs to be neatened up, in terms of its HTML.

I'm going to be doing a little experimenting, and during that process will no doubt lose some of the sidebar content temporarily.

So please be patient with me.

Eventually all content will be restored.

One thing I may do is alternate between the old template and a new one, until I've got it straightened out, but all the content will be saved.

Portland Morning Sentinel: "Maine law students enter battle on downloading, against record labels"

From this morning's Portland Morning Sentinel:

Maine law students enter battle on downloading, against record labels

By TREVOR MAXWELL

Blethen Maine Newspapers Kennebec Journal & Morning Sentinel 01/07/2008

Lisa Chmelecki and Hannah Ames, friends and third-year students at the University of Maine School of Law in Portland, had never studied copyright law before a few months ago, and were unfamiliar with a historic legal battle brewing on college campuses nationwide.

Now they're right in the middle of it.

Chmelecki and Ames, under the supervision of Professor Deirdre Smith, are defending two college students who have been sued for copyright infringement by the Recording Industry Association of America. The cases came to them through the law school's legal aid clinic, which provides representation to low-income residents.

Chmelecki and Ames filed briefs last month in federal court, and are waiting for a judge to rule on their motion to dismiss the cases against their clients.

They argue that the digital information used by the recording industry to bring the lawsuits falls short of a new legal standard, set by the U.S. Supreme Court in a decision in May.

"We're defending the process," said Ames, 25, a Harpswell native. "The RIAA needs to follow the rules, the same way everyone else needs to." Their involvement in the case has captured national attention from lawyers, bloggers and others who intensely follow technology law. The upcoming decision could set a precedent for other students facing RIAA lawsuits. It's all part of a larger debate about the future of information and the Internet.

Complete article
Alternative link (Portland Press Herald) "Third-year law students take on recording industry"

Sunday, January 06, 2008

Newhouse News Service Article: "How the Recording Industry Squeezes College Students"

Article published by Newhouse News Service:

How The Recording Industry Squeezes College Students
By HART SEELY

Morrisville State College sophomore Kasey Brooks was swept up in a Recording Industry Association of America dragnet.

At first, she didn't believe the letter. It said she had illegally shared 10 songs on the Internet last February and she was in big trouble. The Recording Industry Association of America intended to sue her.

Then came the limited-time offer:

Pay $3,600 in the next 20 days, and her problem would go away.

"I was distraught, and I didn't know what was going on," said Kasey Brooks, 20, a sophomore at Morrisville State College in New York. "Now, though, it really seems like people have been trying to intimidate me."

Actually, a generation.

Complete article

Saturday, January 05, 2008

Excellent David Kravetz article in Wired.com shows how Jennifer Pariser's "misspeaking" may have caused miscarriage of justice in Thomas case

Important article by David Kravetz of Wired.com, who covered the Capitol v. Thomas trial in person and gavel to gavel, about Cary Sherman's recent revelation that Jennifer Pariser "misspoke" in her testimony at the trial, which led to a $220,000 verdict:

RIAA's Sherman Speaks (Un)Believable 'Catch 22'
By David Kravets

Don't believe Cary Sherman, the president of the Recording Industry Association of America, when he told a National Public Radio audience that Sony BMG's anti-piracy chief had misspoken during her testimony in the copyright infringement trial against Jammie Thomas.

And if Sherman was telling the truth during that NPR interview, Thomas was the victim of a miscarriage of justice -- despite the mountain of evidence against her.

Complete article

Commentary & discussion:

p2pnet.net
Slashdot

Friday, January 04, 2008

According to Cary Sherman of the RIAA, SONY BMG's in-house lawyer Jennifer Pariser "Misspoke" when testifying during Capitol v. Thomas trial

According to Cary Sherman, President of the RIAA, speaking in an NPR interview available online, Jennifer Pariser -- the head of litigation for SONY BMG -- "misspoke" when she testified in the jury trial in Capitol v. Thomas, as follows:

"Gabriel asked Pariser if it was okay if a consumer makes just one copy of a track they've legally purchased. She said no -- that's "a nice way of saying, 'steals just one copy.'" Wired.com

Link for Interview with Cary Sherman of the RIAA and Marc Fisher of the Washington Post

p2pnet.net quotes the "retraction" of Ms. Pariser's sworn testimony by Mr. Sherman as follows:

"The Sony person who [Marc Fisher of the Washington Post] relies on actually misspoke in that trial. I know because I asked her after stories started appearing. It turns out that she had misheard the question. She thought that this was a question about illegal downloading when it was actually a question about ripping CDs. That is not the position of Sony BMG. That is not the position of that spokesperson. That is not the position of the industry."

[Ed. note:Hmmmm.... seems that (a) Ms. Pariser was under oath, and speaking to the jury, when she misspoke, (b) her testimony might have had an impact on the outcome of the trial. Wonder if the RIAA's lawyers have notified the judge.-R.B.]

Commentary & discussion:

TechDirt
Wired.com
p2pnet.net

San Diego Judge Disagrees with Judge Brewster, Upholds RIAA Complaint, Strikes All of Defendant's Counterclaims

In a case of which we were unaware until today, Atlantic v. Serrano, a San Diego judge has denied the defendant's motion to dismiss the RIAA complaint and granted the RIAA's motion to dismiss all of defendant's counterclaims, including counterclaims for declaratory judgment of noninfringement, invasion of privacy, trespass to chattels, violation of computer fraud and abuse act, and intentional infliction of emotional distress.

Interestingly, this was the same court in which another judge, Judge Rudi Brewster, threw out the RIAA's complaint as "conclusory" "boilerplate" "speculation".

December 28, 2007, Order and Decision Denying Motion to Dismiss Complaint and Granting Motion to Dismiss Counterclaims*

* Document published online at Internet Law & Regulation

Copy of Atlantic v. Howell October 3rd order asking for further briefing

In view of the tempest in a teapot created by Cary Sherman of the RIAA (apparently in response to a negative Motley Fool article and a drop in record company stock prices), in denying that the RIAA's lawyers meant what they said in their supplemental brief in Atlantic v. Howell, and his claim that Marc Fisher's excellent Washington Post article misinterpreted the statement in the brief, we thought it might be helpful to post the actual order of the court, which asked the question to which the RIAA was responding, and to post the actual answer to the question.

The October 3, 2007, order of the court, which asked the parties to brief 4 questions, is now available online.

This is the order which raised the question:

Does the record in this case show that defendant Howell possessed an “unlawful copy” of the plaintiff’s copyrighted material...?"

to which the RIAA lawyers responded:

It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer. Exhibit B to Plaintiffs’ Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant’s computer on January 30, 2006. (SOF, Doc. No. 31, at ¶¶ 4-6); Exhibit 12 to SOF at ¶¶ 13, 17-18.) Virtually all of the sound recordings on Exhibit B are in the “.mp3” format. (Exhibit 10 to SOF, showing virtually all audio files with the “.mp3” extension.) Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use. (Howell Dep. 107:24 to 110:2; 114:1 to 116:16). The .mp3 format is a “compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.” Napster, 239 F.3d at 1011. Once Defendant converted Plaintiffs’ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs.

October 3, 2007, Directing Briefing of 4 Questions*

* Document published online at Internet Law & Regulation

Thursday, January 03, 2008

"Investors beware" of SONY BMG, Warner Music, EMI, and Vivendi Universal, says Motley Fool investment web site

"Investors beware" of "Sony (NYSE: SNE), BMG, Warner Music Group (NYSE: WMG), Vivendi Universal, and EMI", says the Motley Fool investment web site. In an article entitled "We're All Thieves to the RIAA", a Motley Fool columnist, referring to the RIAA's pronouncement in early December in Atlantic v. Howell, that the copies which Mr. Howell had copied from his cd's to mp3's in a 'shared files folder' on his computer were "unauthorized", writer Alyce Lomax said "a good sign of a dying industry that investors might want to avoid is when it would rather litigate than innovate, signaling a potential destroyer of value."

Commentary & discussion:

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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