Recording Industry vs The People

Thursday, October 18, 2012

Had a great time with Aram Sinnreich & Benjamin Kallos tonight

Wednesday, October 17, 2012

Plaintiff files response to motion to sever & quash in Malibu Media v Does 1-13

In Malibu Media v. Does 1-13, plaintiff has filed a response to Doe number 5's motion to sever and quash.

Plaintiff's response to Doe #5's motion to sever and quash

Ray Beckerman, PC

Tuesday, October 16, 2012

Combat Zone ordered to show cause why Does should not be severed in Combat Zone v Does 1-84

In Combat Zone v. Does 1-84, a Boston, Massachusetts, case, Magistrate Judge Jennifer C. Boal has ordered plaintiff to show cause why Does 2-84 should not be severed.

October 15, 2012, Order to Show Cause, Hon. Jennifer C. Boal, Magistrate Judge

Ray Beckerman, PC

Monday, October 15, 2012

"Code v. Code" event, NYC Oct 17, 7 PM

Kallos for Council presents

Code v. Code Discussion Series:

Laws that Hurt Us and Where They Come From

7PM to 9PM, Wednesday, October 17, 2012
Hive at 55, 55 Broad Street, 13th Floor, NY, NY

Featuring:

Ray Beckerman, Attorney and Author opposing RIAA's slap suits for peer to peer file sharing of music.

Aram Sinnreich, Professor at Rutgers and Author of Piracy Crusade

(available under Creative Commons at http://PiracyCrusade.com)

Event Fee(s) *

$ 500.00 IPO Investor (Host)
$ 250.00 Venture Capitalist (Sponsor)
$ 100.00 Angel Investor (Regular Ticket)
$ 50.00 Incubator (Young Professional)
$ 25.00 Slashdot/Student Rate
$ 10.00 Suggested Contribution Simulcast/Video Viewer

Signup:
https://kallosforcouncil.com/civicrm/event/register?reset=1&id=27

Ray Beckerman, PC

Friday, October 12, 2012

Court severs & dismisses in New Sensations v Does 1-201

In a Massachusetts case, New Sensations v. Does 1-201, the Court, in an electronic order, has sua sponte severed and dismissed as to Does 2-201:

Judge Richard G. Stearns: ELECTRONIC ORDER severing all defendants but Doe 1 entered. Beneath the cloud of rhetoric, New Sensations, Inc., raises nothing in its Response beyond conjecture to suggest that these defendants are appropriately joined together. The court accepts counsel's representation of good faith in attempting to litigate these cases. However, under the civil rules, in fairness to all involved, including the court, these cases should be litigated and defended in separate causes of action. Therefore, the court will dismiss without prejudice defendants 2 - 201. (Zierk, Marsha) (Entered: 10/10/2012)

Ray Beckerman, PC

Doe 5 moves to quash & sever in Malibu Media v Does 1-13, Long Island case

In Malibu Media v. Does 1-13, a Long Island case, Doe #5 has moved to sever and to quash.

Doe #5's motion to quash

Ray Beckerman, PC

Saturday, October 06, 2012

Online Media Daily: "ReDigi, Capitol Clash In Court About 'Used' Tracks"

From Online Media Daily:

ReDigi, Capitol Clash In Court About 'Used' Tracks
By Wendy Davis

ReDigi, a start-up that offers people a way to sell "used" iTunes tracks, asked a federal judge in New York to throw out a copyright lawsuit brought against it by Capitol Records. ReDigi lawyer Gary Adelman told U.S. District Court Judge Richard Sullivan at a Friday morning hearing that the company's technology enables consumers to resell digital tracks, the same way they can resell CDs or vinyl records. Adelman argued that consumers have a "first sale" right to resell products that they legally purchased. But Capitol countered that consumers aren't selling the same works that they purchased, but copies that they upload to the cloud. "First sale does not apply if there's been a reproduction," Capitol's lawyer, Jonathan Mandel, told Sullivan.

Complete article

Ray Beckerman, PC

Friday, October 05, 2012

Motions to sever & dismiss granted in Westchester cases, Malibu Media v Does 1-10

In a group of Westchester cases, including Malibu Media v. Does 1-10, back in August, District Judge Edgardo Ramos severed and dismissed all cases against John Does other than Does numbered 1.

Order granting discovery, severing, and dismissing, Hon. Edgardo Ramos, August 21, 2012

Ray Beckerman, PC

Thursday, October 04, 2012

Plaintiff ordered to show cause why subpoenas should not be quashed in Combat Zone v Does 1-84

In a Massachusetts case, Combat Zone v. Does 1-84, Magistrate Judge Jennifer C. Boal has ordered the plaintiff to show cause why its subpoenas should not be quashed, on the ground that the subpoenas contained a notice which suggested that the recipients -- the owners of the IP access accounts -- had themselves been sued.

October 4, 2012, Order to Show Cause

Ray Beckerman, PC

Wednesday, October 03, 2012

Motion to sever & dismiss granted in Third Degree Films v. Does 1-47

In a Massachusetts case, Third Degree Films v. Does 1-47, the Court has departed from its earlier authority, and granted a motion to sever and dismiss. The Court's 26-page opinion concludes that joinder is permissible, but that the Court should not exercise its discretion in favor of joinder.

October 2, 2012, Memorandum and Order, Hon. William G. Young, US District Judge

Ray Beckerman, PC

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