Recording Industry vs The People

Saturday, December 06, 2008

Matthew Oppenheim tries to intervene in North Carolina probable cause hearing against MediaSentry

A "probable cause" hearing is scheduled to be conducted by the North Carolina Private Protective Services Board on December 10, 2008, in Robertson v. MediaSentry, investigating the charges which have been levelled against MediaSentry for investigating without a license. The charges stem from the RIAA's "John Doe" actions against students at North Carolina State University, in Raleigh.

On December 4, 2008, five (5) months after receiving notice of the hearing, the RIAA's lawyer Matthew Oppenheim wrote to the PPSB asking permission to participate in the hearing "in order to provide the NCPPS Board with as complete a factual picture as possible".

The students are represented by Stephen Robertson, a partner in the Greensboro, North Carolina, firm, Robertson & Medlin

Notice of Probable Cause Hearing
December 4, 2008, Letter of Matthew J. Oppenheim and "The Oppenheim Group"

[Ed. note. The "Prince of Darkness" himself asking to get involved? Sounds like they're afraid of something. With Matthew Oppenheim on their side, I'm pretty sure MediaSentry will lose. -R.B.]

Commentary & discussion:

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Friday, December 05, 2008

Briefing of defendant's Rule 11 motion against RIAA lawyers completed in UMG Recordings v. Lindor

The briefing of the Rule 11 motion made by the defendant in UMG Recordings v. Lindor is now complete, Ms. Lindor having filed her attorney's reply declaration.

Reply Declaration of Ray Beckerman

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"RIAA Faces Web 2.0" -- Online Daily Examiner article comments on role of "social media" in fighting RIAA litigation

An interesting article in The Online Daily Examiner discusses the role "social media" can play in the RIAA litigations, commenting on the Facebook page set up by Prof. Nesson's Cyberlaw class:

RIAA Faces Web 2.0
by Wendy Davis

Harvard Law School professor Charles Nesson, who leads the defense team representing alleged file-sharer Joel Tenenbaum, isn't just taking on the record industry in court. He's also tapping into Web 2.0 with the new Facebook group "Joel Fights Back Against RIAA." ....

....Nesson's not the first person to attempt to harness social media on behalf of defendants.....

That effort can only benefit individual RIAA targets, who can now easily learn how judges around the country view the issues......

Complete Article

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Thursday, December 04, 2008

Plaintiffs' voluntary dismissal and 'discovery sanction' motion fully briefed in UMG Recordings v. Lindor

In UMG Recordings v. Lindor, the motion has now been fully briefed and submitted to the Court, as the plaintiffs filed their final submission, a reply memorandum.

Additionally, plaintiffs filed their memorandum in opposition to defendant's Rule 11 motion.

Plaintiffs' reply memorandum
Plaintiffs' memorandum in opposition to Rule 11 motion

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RIAA files opposition to dismissal motion in Pennsylvania case, SONY BMG Music v. Cloud

The RIAA has filed its papers opposing the defendant's dismissal motion in a Pennsylvania case, SONY BMG Music v. Cloud.

Plaintiff's Opposition Memorandum

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Wednesday, December 03, 2008

Legal Clinic at Franklin Pierce Law Center in New Hampshire representing RIAA defendant in UMG Recordings v. Roy

We have recently learned that student attorneys* at the Consumer and Commercial Law Clinic of the Franklin Pierce Law Center in Concord, New Hampshire, have joined the fight against the RIAA, and have been defending a person targeted by the RIAA in New Hampshire, in UMG Recordings v. Roy.

The case is scheduled for trial in the Fall of 2009.

*Student attorneys are law students working under the supervision of law school faculty members.

[Ed. note. That makes at least four (4) law school clinical programs, of which we are aware, providing legal assistance to people targeted by the RIAA: the University of San Francisco School of Law, the University of Maine Law School, Franklin Pierce Law Center, and most recently Harvard University Law School. Hopefully many more will follow. -R.B.]

Complaint
Answer
Discovery Plan

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Cyberlaw team in Tenenbaum case on Facebook

Once again thanks to Jon Newton at p2pnet.net, this time for pointing out that Joel Tenenbaum's legal team -- Prof. Nesson and his CyberLaw class -- have their own Facebook page about the case.

Commentary & discussion:

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p2p on!

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Interview with RB in Intellectual Property Watch

Jon Newton at p2pnet.net was kind enough to point out the publication today of my interview with journalist/author Bruce Gain in Intellectual Property Watch, which I thought some of my readers might enjoy.

Bruce, being a forward-looking internet visionary, asked me a lot of questions about what the future has in store; of course this is a weak point of mine, since I have no idea what the future has in store for us. But I did my best.

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Interview with Prof. Nesson and Joel Tenenbaum available online

An interview with Prof. Charles Nesson, and with his client Joel Tenenbaum, about SONY BMG Music v. Tenenbaum, is available online here at MediaBerkman.

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Tuesday, December 02, 2008

RIAA sues transplant patient

Just when you think they've reached rock bottom, it seems the RIAA always finds room to sink a little lower.

This time they've sued an innocent, 19-year-old, transplant patient, hospitalized with pancreatitis and needing islet cell transplants, according to a report on p2pnet.net

Complete article at p2pnet.net
Complete article at WTAE-TV PittsburghChannel.com

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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