Recording Industry vs The People

Wednesday, June 27, 2012

John Doe #4 moving to quash in Malibu Media v Does 1-5

A motion to quash is being made by John Doe #4, in Malibu Media v. Does 1-5, US District Court, SDNY, Civil Action File No. 12-cv-2954 (NRB). Formal motion papers are due to be filed by Friday, June 29th.

June 18, 2012, Letter of Morlan Ty Rogers to Hon. Naomi Reice Buchwald, US District Judge

Ray Beckerman, PC

In Liberty Media v Tabora, defendant moves to dismiss 'negligence' claim, EFF files amicus brief

In Liberty Media Holdings v. Tabora, a bittorrent download case in Manhattan, the defendant has moved to dismiss the complaint on the grounds that no copyright registrations had been filed for the films in issue, and that plaintiff's third claim -- for 'negligence' -- is preempted by the Copyright Act.

The Electronic Frontier Foundation has filed an amicus curiae brief supporting dismissal of the 'negligence' claim on preemption grounds.

Complaint
Defendant's Memorandum of Law in Support of Motion to Dismiss Complaint
Amicus Curiae Brief of Electronic Frontier Foundation in Support of Motion to Dismiss Negligence Claim on Preemption Grounds

Ray Beckerman, PC

Monday, June 25, 2012

Capitol v MP3Tunes to proceed against Michael Robertson, motion for stay denied

Defendant Michael Robertson's motion for a stay has been denied in Capitol Records v. MP3Tunes.

June 25, 2012, Memorandum Opinion & Order

Ray Beckerman, PC

Friday, June 22, 2012

Judge McMahon Dismisses & Severs in Combat Zone v Does 1-34

By Ray Beckerman of Ray Beckerman, PC

In Combat Zone v. John Does 1-34, Judge McMahon has issued a decision in which she severed and dismissed the claims against John Does 2 through 34.

June 18, 2012, Decision of Hon. Colleen McMahon dismissing and severing as to John Does 2-34

Tuesday, June 19, 2012

Magistrate rules motion by pro se litigant couldn't be made anonymously in Malibu Media v Does 1-13

In Malibu Media v. Does 1-13, where a pro se litigant had made a motion to quash, sever, and dismiss, anonymously, a Magistrate Judge has ruled that the motion could not be made anonymously in the manner the litigant employed.

June 19, 2012, Report and Recommendation denying anonymous pro se motion

Monday, June 18, 2012

Judge McMahon severs, dismisses, & quashes in Digital Sins v Does 1-245

In Digital Sins v. Does 1-245, a bittorrent downloading case pending in Manhattan, District Judge Colleen McMahon has issued a decision dismissing and severing all claims except the claim against John Doe #1, and quashing all related subpoenas. Among other things, Judge McMahon noted:

The only economy that litigating these cases as a single action would achieve is an economy to plaintiff- the economy of not having to pay a separate filing fee for each action brought. However, the desire to avoid paying statutorily mandated filing fees affords no basis for joinder. In these BitTorrent cases, where numerous courts have already chronicled abusive litigation practices - again, I refer to the reader to Magistrate Judge Brown's Report and Recommendation - forcing plaintiff to bring separate actions against separate infringers, and to pay a filing fee for each action, is the single best way to forestall further abuse. This is particularly important because the nature of the alleged copyright infringement - the downloading of an admittedly pornographic movie - has the potential for forcing coercive settlements, due to the potential for embarrassing the defendants, who face the possibility that plaintiffs thus-far-unsubstantiated and perhaps erroneous allegation will be made public.

May 5, 2012, Decision of Judge Colleen McMahon, dismissing, severing, quashing

Commentary & discussion:

Torrentlawyer

Thursday, June 14, 2012

Audio of Capitol v Thomas argument available online

In Capitol Records v. Thomas-Rasset, an audiotape of the June 12th argument in the 8th Circuit is available online.

Audiotape of June 12, 2012, argument in US Court of Appeals for the 8th Circuit

[Ed. note. One never knows what an appeals court will do, but here's my prediction: affirm. "Holistic"? Give me a break. ~R.B.]

Commentary & discussion:

Slashdot
Daily Online Examiner (MediaPost)

Wednesday, June 13, 2012

7th Circuit grants summary judgment in "obvious fair use" case, Brownmark Films v Comedy Partners

Hat tip to Barry Werbin, Esq., of Herrick, Feinstein, for bringing this decision to my attention. -R.B.

In Brownmark Films v. Comedy Partners, involving the "Canada on Strike" South Park episode, the US Court of Appeals for the 7th Circuit granted summary judgment for the defendant, on the ground that the episode was obviously a parody entitled to the fair use defense.

June 7, 2012, Decision

Tuesday, June 05, 2012

Jammie Thomas case scheduled for argument in 8th Circuit, Tuesday June 12th, 9 AM

In Capitol Records v. Thomas-Rasset, oral argument before the US Court of Appeals for the 8th Circuit is scheduled for Tuesday, June 12th, at 9:00 A.M. Each side has been alotted 30 minutes for its argument.

The argument will take place at the Warren E. Burger Federal Building & U.S. Courthouse at 316 N. Robert Street, St. Paul, Minnesota.

Although this case involved the District Court's repudiation of the RIAA's "making available" theory, Ms. Thomas-Rasset's attorneys have sought to waive that issue on appeal, and confine the appeal to the issue of the unconstitutionality of the RIAA's statutory damages theory.

Notice of arguments (PDF)

The only appellate briefs of which we are aware are the following:

RIAA brief
Amicus brief of EFF, Public Knowledge, et al
MPAA Amicus brief
DOJ Appellee Brief
Thomas-Rasset Reply Brief

If anyone is aware of other briefs, please advise.

[Ed. note. I cannot for the life of me understand why Ms. Thomas-Rasset's lawyers wanted to waive the "making available" issue, since [1] the RIAA is clearly dead wrong in its arguments, [2] the District Court was dead right in its holding on this issue, and [3] the 8th Circuit is one of the appellate courts that has weighed in on this issue, holding explicitly that a violation of the distribution right requires actual dissemination of actual copies, not merely an "offer" to distribute. Their brief attempting to waive the issue may or may not succeed in taking the issue out of play; we shall see. -R.B.]

Commentary & discussion:

Wired.com

In SONY BMG Music v Tenenbaum, defendant files request for new trial

In SONY BMG Music Entertainment v. Tenenbaum, defendant Joel Tenenbaum has filed a request for a new trial with proper jury instructions on the subject of statutory damages.

Amended further submission of defendant (request for new trial

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