Recording Industry vs The People

Wednesday, February 04, 2009

Chronicle of Higher Education Reports: Some Lawsuits Dropped but 'Takedown' notices being sent

Interesting article by Sara Lipka in Chronicle of Higher Education:

RIAA Drops Lawsuits but Keeps the 'Takedown' Notices Coming

The Recording Industry Association of America announced in December that it was shifting gears and would stop suing groups of students for alleged illegal file sharing. So what is it doing now?

For starters, the industry group is pulling back from pending cases. In many lawsuits that recording companies filed against anonymous students — “John Does” — legal hurdles and universities’ challenges inhibited identification of those defendants.

“We are by and large dismissing all John Doe cases where we have not received a discovery order or a subpoena response,” Cara Duckworth, a spokeswoman for the RIAA, said in an e-mail interview. “Of course, there are some exceptions,” she said, without naming which ones.

Complete article

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Practice tip: Additional thought on settlement strategy... ask for settlement conference

On January 20th I posted a practice tip on settlement strategy in the "post-announcement" phase, suggesting that (a) as to clients who have not yet been identified to the RIAA we should advise the clients that some "John Doe" cases have been dropped without the RIAA obtaining the sought after discovery, and (b) all settlement offers by defendants should be put in writing so that they get delivered unimbellished to the decisionmaker(s).

It occurred to me that there is a third point which should be made, which is that -- as to clients who are strongly interested in settling -- if you are in the midst of litigation you should ask the Court for a settlement conference.

In Maverick Recording v. Goldshteyn, the Magistrate Judge ordered the plaintiffs to appear for a settlement conference and to produce the "principals" of the companies at the conference (although he later accepted Matthew Oppenheim as the "principal" of all five of the plaintiffs).

December 27, 2006, Order Scheduling Settlement Conference*

* Document published online at Internet Law & Regulation

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RIAA serves defendant with summons and complaint on January 20th

According to court papers in Interscope Records v. Paul, a Massachusetts case, the RIAA served a summons and complaint upon the defendant on January 20th, more than a month after its announcement that it was ceasing its mass litigation program.

Declaration of service

Commentary & discussion:

TechDirt

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"The RIAA: family devastation specialists" -- great article in p2pnet.net

A powerful story just came out in p2pnet.net about the impact the RIAA's cases have on their victims, aptly entitled 'The RIAA: family devastation specialists'.

It tells, in very human terms, the story of Brittany Kruger, an 18-year-old college student at Northern Michigan University in Marquette, Michigan, and the impact the RIAA's persecution has had on her and her family.

The RIAA is being especially vengeful towards Brittany, because she, with the help of her non-lawyer father, dared to question the legality of MediaSentry's conducting investigations in Michigan without an investigator's license. Her complaint prompted an investigation by Michigan's Department of Labor and Economic Growth which encouraged other college students, and even colleges, in Michigan to follow suit, probably led to reform of Michigan's licensing statute, caught MediaSentry up in a pack of lies, and which may yet lead to criminal prosecution, but which was not sufficient to cause MediaSentry to stop its illegal practice.

Keywords: lawyer 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 portable music player

Interesting article in Ars Technica, "How Harvard Law threw down the gauntlet to the RIAA"

Interesting article in Ars Technica:

How Harvard Law threw down the gauntlet to the RIAA

Inside one Harvard Law professor's bid to turn his students into cyberactivists and to force the music industry to face the future in the process.

By Nate Anderson

In retrospect, Harvard's eventual involvement was obvious. As far back as 2007, we noted that RIAA prelitigation letters had yet to be sent to Harvard, and one reason for that may have been the quite public opposition of Harvard Law School to the entire RIAA legal campaign.

Law professor Charles Nesson and John Palfrey, director of the Berkman Center for Internet & Society (which Nesson co-founded), made their position clear. "Recently, the president of the Recording Industry Association of America, Cary Sherman, wrote to Harvard to challenge the university administration to stop acting as a 'passive conduit' for students downloading music," they wrote in 2007. "We agree. Harvard and the 22 universities to which the RIAA has sent 'pre-litigation notices' ought to take strong, direct action... and tell the RIAA to take a hike."
......
It wasn't quite a declaration of war, but it did amount to an Army unit trotting out a massive howitzer, oiling it up, and firing off some test shots. Powerful interests at Harvard Law were displeased enough by the RIAA actions to speak out, but they weren't yet ready to play an active role.

That is, until Boston University graduate student Joel Tenenbaum got in touch with Nesson in 2008. Nesson took the case, acting as Tenenbaum's attorney, but he outsourced the work of research, strategy, and brief writing to a set of eager Harvard Law students. The students would quickly mount an ambitious defense, not just of Joel Tenenbaum, but of the claim that the RIAA legal campaign was unconstitutionally excessive and improper. Armed with a law library, Twitter, a Web site, and caffeine, the students have already made sure that the upcoming Tenenbaum trial will eclipse the Minnesota Jammie Thomas case for sheer spectacle.

And, if things go their way, the world will get the chance to see it all live on the Web.

Complete article

Commentary & discussion:

Contrapuntist

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Tuesday, February 03, 2009

Electronic Frontier Foundation to confront YouTube over invalid DMCA takedowns

According to the Electronic Frontier Foundation, YouTube is issuing too many take down notices, using its automated "Content ID" system which fails to take into account the user's Fair Use rights:

YouTube's January Fair Use Massacre
Commentary by Fred von Lohmann

This is what it's come to. Teenagers singing "Winter Wonderland" being censored off YouTube.

Fair use has always been at risk on YouTube, thanks to abusive DMCA takedown notices sent by copyright owners (sometimes carelessly, sometimes not). But in the past several weeks, two things have made things much worse for those who want to sing a song, post an a capella tribute, or set machinima to music.

First, it appears that more and more copyright owners are using YouTube's automated copyright filtering system (known as the Content ID system), which tests all videos looking for a "match" with "fingerprints" provided by copyright owners.

Second, thanks to a recent spat between YouTube and Warner Music Group, YouTube's Content ID tool is now being used to censor lots and lots of videos (previously, Warner just silently shared in the advertising revenue for the videos that included a "match" to its music).

EFF is offering assistance to those who have been victimized:

EFF wants to help. If Warner Music Group took down your video, ask yourself if your video is (1) noncommercial (i.e., no commercial advertisements or YouTube Partner videos) and (2) includes substantial original material contributed by you (i.e., no verbatim copies of Warner music videos). If so, and you'd like to counternotice but are afraid of getting sued, we'd like to hear from you. We can't promise to take every case, but neither will we stand by and watch semi-automated takedowns trample fair use.

Complete article at http://eff.org

It was recently held that DMCA notices must be based upon an assessment that the alleged infringement does not fall within Fair Use, in Lenz v. Universal Music, a case in which EFF represents the plaintiff.

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Defendant opposes RIAA motion to dismiss counterclaims in Atlantic Recording v. Raleigh in St. Louis, Missouri

In a St. Louis, Missouri, case, Atlantic Recording v. Raleigh, the defendant has filed her papers opposing the RIAA's motion to dismiss counterclaims.

The RIAA's time to file reply papers expires on February 4th, but its lawyers are seeking an extension of time, to which the defendant's lawyers have consented.

Defendant's memorandum in opposition

[Ed. note. Since the counterclaims were interposed as class action counterclaims, defendant could have argued that the damages under the Computer Fraud and Abuse Act can be aggregated. See In Apple & AT & TM Antitrust Litigation]

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Jennifer Pariser, SONY BMG witness who "misspoke" during Capitol Records v. Thomas trial, goes to work directly for RIAA

Jennifer Pariser, the SONY BMG Music lawyer who -- according to the RIAA's Cary Sherman -- "misspoke" in her testimony at the first Capitol Records v. Thomas trial, has joined the RIAA, according to this report in Variety.

In actuality it is not clear that the statement that was attributed to her is in fact what she said at the trial. It appears that the media reports were wrong. See this explanation in Ars Technica.

Commentary & discussion:

p2pnet.net

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Monday, February 02, 2009

Boston Globe gives the RIAA some advice: drop the Tenenbaum case and shut down the litigation campaign

A Boston Globe editorial gave the RIAA the following advice:

Stop lawsuits, not music

THE RECORDING INDUSTRY helped its image when it ended its misguided policy of suing individuals for illegally sharing music over the Internet.....

But the Recording Industry Association of America is not withdrawing suits that have already been filed, threatening to negate the good will.....

Before the case goes to trial, the best course is to end the litigation, and for the industry to shut down its punitive campaign entirely.

Complete editorial

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RIAA files reply brief in support of its petition for 'mandamus or prohibition', argues Judge Gertner, Tenenbaum, amici misinterpreted rule

In SONY BMG Music v. Tenenbaum, the RIAA has filed a reply brief in support of its petition for 'mandamus or certiorari', arguing that:

-Mr. Tenenbaum had no right to "incorporate by reference" the legal arguments made by the amici curiae,

-Judge Gertner, Tenenbaum, and the amici curiae have all misunderstood the provision of Rule 83.3 which states "or by order of the court"

-the "mandamus" application did not require a showing of irreparable harm, and

-if mandamus is not the proper remedy, their "protective notice of appeal" should be considered.

The reply brief does not address any of the constitutional issues that had been raised by Judge Gertner and by the amici.

RIAA Reply Brief

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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