Recording Industry vs The People

Thursday, November 04, 2010

Reply brief filed by amicus curiae on jury instruction issue in Capitol v Thomas-Rasset

In Capitol Records v. Thomas-Rasset, amicus curiae Prof. Charles Nesson had filed a reply brief on the jury instruction issue.

Amicus reply brief

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Jury awards $1.5 million in Jammie Thomas case

In the damages retrial in Capitol Records v. Thomas-Rasset, which concluded yesterday, after the Judge refused to instruct the jurors that the amount of the award was required to bear a reasonable relationship to the actual damages sustained by plaintiffs, the jury returned a verdict of $62,500 per song, for a total of $1.5 million.

The Judge has previously ruled that the maximum allowable amount in the case is $54,000.

Court minutes
Verdict

[Ed. note. No surprises here, given the contents of the jury instructions and verdict form. The only surprises are that (a) the judge felt it necessary to have a predictably futile third trial, (b) the judge refused to instruct the jury that the statutory damages must bear a reasonable relationship to the actual damages, which is a fundamental tenet of the law regarding copyright infringement, and (c) the judge has so far declined to reach the constitutional issue which is staring him in the face. It also seems odd to me that the judge had not instructed the jury that plaintiffs had proved a copying -- i.e. a download -- but not a "distribution" as defined in the Copyright Act. -R.B.]

Commentary & discussion:

p2pnet
slashdot
ars technica
Los Angeles Times
p2pnet.net
Electronic Frontier Foundation

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, November 03, 2010

According to court records Capitol v Thomas-Rasset damages retrial commenced yesterday, continued today

According to court records, the damages retrial in
Capitol Records v. Thomas-Rasset commenced yesterday and was continued today, Prof. Nesson was granted leave to file an amicus brief, and the RIAA filed a responding brief.

Nesson amicus brief
RIAA response

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, November 01, 2010

Prof. Nesson admitted pro hac vice in Capitol v Thomas-Rasset

In the Minnesota case Capitol Records v. Thomas-Rasset, law school professor Charles Nesson, who represents Joel Tenenbaum, in a Massachusetts case, has been admitted pro hac vice to assist in representing defendant. The defendant's lawyers are former students of his. I have been informed that the trial is scheduled to start tomorrow -- November 2nd [election day?!]

In addition,

-Prof. Nesson filed an amicus brief;
-the brief was rejected by the court due to no motion for leave to file having been made; and
-Prof. Nesson thereafter made a motion for leave to file.

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

Sunday, October 31, 2010

Article in @p2pnet about my interview with @copygrounds

Jon Newton of p2pnet.net writes about the website, copygrounds (@copygrounds on Twitter), and its interview with me:

Ray Beckerman Talks to Copygrounds

Ray Beckerman’s Recording Industry vs The People blog is the only online repository of legal documents surrounding the RIAA Sue ‘Em All cases.

p2pnet coined the Sue ‘Em All phrase for the first time back in 2003 when the RIAA spearheaded Big Music’s ongoing campaign to gain control of how, and by whom, music is distributed online.

The music ‘trade’ organisation claimed then, and claims now, that files shared equal sales lost. But the contention has never been even nearly demonstrated or supported and in fact, a number of academic and other studies have put it to the lie.

Complete article at p2pnet
Complete interview at copygrounds

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Radio Berkman 166: An Innocent Infringer? Prof Nesson, Kiwi Camara, & Whitney Harper

Podcast about innocent infringement. Whitney Harper, Prof. Charles Nesson, and Kiwi Camara:

"Radio Berkman 166: An Innocent Infringer?"

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

MP3Tunes moves for summary judgment dismissing RIAA case

In Capitol Records v. MP3Tunes, the defendants have moved for summary judgment dismissing the case.

Defendants' memorandum of law in support of motion for summary judgment

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 29, 2010

Had a great time at "Reaching Acc[h]ord" at St John's Law School

Ty Rogers and I had a great time at the "Reaching Acc[h]ord" program at my alma mater, St. John's University School of Law.

I got to meet, for the very first time in person, two great guys: Prof. Charles Nesson and Joel Tenenbaum

And we were treated to an incredible performance by indie singer/songwriter Jake Walden (@jakewalden on Twitter):

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

Thursday, October 28, 2010

RIAA files its brief in First Circuit in SONY BMG Music Entertainment v Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has filed its appellate brief seeking to overturn the judgment of the District Court which on constitutional due process grounds reduced the jury's verdict from $675,000 to $67,500.

RIAA appellate brief

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 27, 2010

Lime Wire consent injunction entered

In Arista Records v. LimeWire, a consent injunction has been entered.

A consent injunction is an injunction which is agreed to by both sides.

Under the injunction, LimeWire is required to cease using its old software, and is permitted to develop new software.

The injunction leaves open the question of damages, and provides that if any defendant is later exonerated on appeal, the injunction would no longer be applicable to that defendant.

Consent injunction

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