Recording Industry vs The People

Saturday, October 23, 2010

"Reaching Acc[h]ord: Resolving Disputes Over Music Downloading" Panel Disc/CLE program-St Johns Law 10/29

I will be participating in the following CLE Program and Panel Discussion on Friday, October 29th, 9 AM - 3 PM, at St. John's University School of Law, in Jamaica, Queens:

"Reaching Acc[h]ord: Resolving Disputes Over Music Downloading"

October 29, 2010 9:00 AM - 2:00 PM
Law School | Belson Moot Court Room | 2nd Floor

The Hugh L. Carey Center for Dispute Resolution, together with the Law School's Dispute Resolution Society and Entertainment, Arts and Sports Law Society, presents:

Reaching Acc[h]ord: Resolving Disputes Over Music Downloading

* Charles S. Nesson | Harvard Law School professor and counsel to Joel Tenenbaum
* Joel Tennenbaum | Boston University student initially found liable for over $600,000 in damages for unauthorized music downloading
* Ray Beckerman | Respected entertainment attorney and blogger on the topic of music downloading
* Jake Walden | Independent recording artist.
* Cathy Constantino | Conflict Management System Design Expert

Date
Friday, October 29, 2010

Time
9 a.m. - 2 p.m.

Location
School of Law | Belson Moot Court Room | Second Floor

Fee
$25 entry fee
Free admission for law students with valid Law School ID

Registration
Please register at specialevents@stjohns.edu by Wednesday, October 27, 2010

More Information
Maureen Mulligan
Associate Director of Special Events
(718) 990-1950
mulligam@stjohns.edu

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

In Jammie Thomas case, Judge Davis refuses to consider constitutional issue; 3rd trial to commence Nov 1

In Capitol Records v. Thomas-Rasset, Judge Davis has denied defendant's motion for reconsideration, which asked the judge to determine the issue of the constitutionality of the award under on due process grounds. Presumably this means the third trial will commence, as scheduled, on November 1st.

Department of Justice Opposition Papers
RIAA Opposition Papers
October 22, Decision, Denying Reconsideration, Declining to Rule on Constitutional Issue

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

Wednesday, October 20, 2010

Jammie Thomas moves for Court to consider constitutional due process issue

In Capitol Records v. Thomas-Rasset, the defendant has filed a motion for reconsideration requesting the Court to now reach the constitutional due process issue which it had declined to reach in its prior decision setting aside the verdict on the ground of remittitur, but not on the basis of due process.

Defendant submitted Judge Gertner's decision in SONY v. Tenenbaum, and pointed out to the Court that a third trial in the Thomas case would likely reach the same result as the first two trials.

Defendant's motion for reconsideration

Commentary & discussion:

p2pnet

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

Judge Davis refuses request for "reasonable damages" instruction in Capitol v Thomas-Rasset

In Capitol Records v. Thomas-Rasset, Judge Davis has refused to instruct the jury that their statutory damages award must bear a reasonable relationship to the actual damages, and is instructing the jury that the defendant has violated the plaintiffs' distribution right.

October 13, 2010, Decision
Court's proposed jury instructions

[Ed. note In view of the jury instructions the judge is planning to give, it seems highly likely that the jury is going to feel compelled to once again come in with an award that is somewhere between $750 and $150,000 per work. I think the judge has erred once again. The jury will, apparently, not be able to consider the facts that (a) there was no evidence of a "distribution" within the meaning of the Copyright Act, and (b) plaintiffs' actual damages are in the neighborhood of 5 cents per work. And will not be instructed that its statutory damages award should be reasonable. How on earth can the judge have a problem with instructing the jury as to a long standing principle of copyright law, that statutory damages are required to bear a reasonable relationship to the actual damages. Sad. Very sad. -R.B.]

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

RIAA files brief opposing petition for certiorari in Maverick Recording v Harper

In Maverick Recording Co. v. Harper, the RIAA has filed its response to the petition for certiorari:

RIAA response in opposition to petition for certiorari

h/t Copyrights & Campaigns

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

Monday, October 11, 2010

Irish ISP wins major legal victory against record labels

Interesting news from TechEYE.net:

Irish ISP wins major legal victory against record labels
No legal precedent in Irish law for disconnection

UPC, one of Ireland's largest internet service providers, has won a major legal victory against four of the world's most powerful record companies over the much-contested issue of online music piracy.

The High Court in Dublin ruled today that there was no precedent in Irish law to force ISPs to identify and disconnect people accused of illegally downloading copyrighted files, which means that despite the record companies requests, UPC will not be required to take part in the three strikes programme that had been on the table for some time now.

Warner Music, Universal Music, Sony BMG and EMI Records wanted a three strikes system that would including an informal warning at the first stage, designed to highlight the problem, a stern written warning at the second stage, threatening disconnection, and then a disconnection for seven days at the third stage. If a user continues to break the rules disconnection for a full year may follow.

Complete article

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

Friday, October 08, 2010

"Monetizing the Band" - October 12th program hosted by New York Law School #music #musicians

New York Law School is holding “Monetizing the Band.”

This event will instruct practictioners, law students and other interested parties in the art of making a band a money-making entity. We will be meeting with members of actual working bands, booking agents, artist managers, web 2.0 experts, merchandise professionals, publishing companies, licensing companies and independent record labels.

After the panels, there will be a general networking session.

This event is sponsored by Esq. Bank.

Please rsvp at brian.daitzman@law.nyls.edu

Tuesday, October 12 2010. Check in begins at 6pm. Must RSVP.
@New York Law School for Tuesday, October 12 2010 for the night in room W201 at 185 W. Broadway Campus NY, NY.

Here is the program:

The band panel will begin at 6:30pm

Jonny Dubowsky (Rock & Renew/Jonny Lives!)
Kenyon Philips (Unisex Salon)
Ezra Huleat (Black Taxi)
Erica Quitzow (Young Love Records/Quitzow)
Josh Hoisington (The Stationary Set)
Maya Azucena (Maya Azucena)

Industry Panel 7:30

Adam Shore (The Daily Swarm)
Natalia Nataskin (Agency Group Lawyer)
Jeremy Holgersen (Agency Group)
Justin Shukat (Primary Wave Music)
Peter Shukat (Lawyer)
Mark Weiss (Artist Arena)
David Mazur (Masur Law)
Adrian Perry (Tab the band/ Weil)
Barry Heyman (Heyman Law)
Adam Jordan (Rely Records)
Jake Ottman (EMI)
Veronica Gretton (Independent Manager + Publisher)
Rob Shore (Business Manager)
Ray Beckerman (Lawyer)

Bios of panel members (pdf)

Brian Daitzman, JD
http://www.linkedin.com/in/briandaitzman

(Short URL for this post: http://bit.ly/a5U4mL)

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

Wednesday, September 22, 2010

Supreme Court asks RIAA to respond to petition for certiorari in Maverick v Harper

In Maverick Recording Co v. Harper, the US Supreme Court has asked the RIAA to submit a response to the petition for certiorari, according to this report in p2pnet.

The RIAA had initially waived its right to respond.

This is the case in which the 5th Circuit had held that the innocent infringement defense is barred as a matter of law, even if the infringed copy bears no copyright notice, any time the recording in question has corresponding copies on sale in record stores which do bear a copyright notice.

[Ed. note. The 5th Circuit's ruling was ludicrous, and deserves to be unceremoniously reversed. The Supreme Court's request for a response from the RIAA at this juncture suggests that the high court has picked up on the 5th Circuit's flagrant mistake. -R.B.]

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

Tuesday, September 21, 2010

Trial date changed to November 1st in Capitol Records v Thomas-Rasset

In Capitol Records v. Thomas-Rasset, the trial date has been changed to November 1st.

Order setting November 1st trial date

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

Friday, September 03, 2010

Dept of Justice Joins in and files Appeal in SONY v Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the US Department of Justice, which intervened in the proceedings below, has filed a notice of appeal.

Notice of Appeal by DOJ

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

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