Recording Industry vs The People

Monday, April 30, 2012

New scheduling order entered in Capitol v ReDigi

In Capitol Records v. ReDigi, a new scheduling order has been entered, providing for discovery to be concluded by June 20th, and for the summary judgment briefing to be conducted over the summer, and for oral argument of the summary judgment motion to take place on October 5th.

Amended Case Management Order

Tuesday, April 24, 2012

Possible change of lawyers representing ReDigi in Capitol Records v ReDigi

In Capitol Records v. ReDigi, papers have been submitted requesting permission for a substitution of ReDigi's counsel.

ReDigi's present firm is Ray Beckerman, PC.

The proposed new firm would be Meister Seelig & Fein LLP.

The judge has requested a joint letter from Capitol Records' lawyers and the Meister Seelig firm indicating whether deadlines in the case management order would be affected by the proposed substitution.

Stipulation of Substitution
Statement pursuant to Local Rule 1.4
Order requesting joint statement from plaintiff's counsel and proposed incoming defendant's counsel

Friday, April 20, 2012

UMG's summary judgment motion denied in James v UMG, digital download 'sale vs license' case

In James v. UMG Recordings, a royalty agreement class action which alleges that UMG understated royalties owed to performing artists for digital downloads by classifying them as sales, rather than licenses, UMG's motion for summary judgment has been denied.

April 19, 2012, Opinion denying Defendant's motion for summary judgment

Wednesday, April 18, 2012

Ex parte motion for expedited discovery denied in Hard Drive v. Does 1-90

In Hard Drive v. Does 1-90, a mass John Doe case based on alleged BitTorrent downloads of a movie, pending in the Northern District of California, San Jose Division, the Court, by Hon. Howard R. Lloyd, Magistrate Judge, has denied plaintiff's ex parte motion for expedited discovery.

Judge Lloyd's decision held that

the court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net). Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting “settlement” payments from persons who may or may not be infringers. This the court is not willing to do.

Order Denying Expedited Discovery

Monday, April 09, 2012

All defendants' dismissal motions denied in Grooveshark case, Arista v Escape Media

All of the defendants' dismissal motions were denied from the bench on April 6th, in Arista Music v. Escape Media:

Minute Entry for proceedings held before Judge Thomas P. Griesa: Oral Argument held on 4/6/2012. Defendants' three motions to dismiss are denied in open court. (cd)

Thursday, April 05, 2012

Viacom v. YouTube reversed, remanded for trial

In Viacom v. YouTube, a 2-judge panel in the Second Circuit* reversed the District Court decision granting summary judgment to YouTube, and remanded for a trial of certain factual issues.

* Judge Miner, who was originally a member of the panel, passed away prior to the decision.

April 5, 2012, decision of US Court of Appeals for the 2nd Circuit

Wednesday, April 04, 2012

Additional briefs filed by DOJ & Jammie Thomas-Rasset in 8th Circuit

In the 8th Circuit appeal of Capitol Records v. Thomas-Rasset, the Department of Justice and Jammie Thomas-Rasset have filed further briefs.

DOJ Appellee Brief
Thomas-Rasset Reply Brief

Wednesday, March 14, 2012

RIAA opposes dismissal motions in Arista v Escape Media (Grooveshark)

In Arista Music v. Escape Media (Grooveshark), the RIAA has filed its memoranda of law opposing the defendants' dismissal motions.

Plaintiffs' memorandum of law in opposition to motion to dismiss for failure to state a claim
Plaintiffs' memorandum of law in opposition to Greenberg motion dismiss on jurisdictional grounds
Plaintiffs' memorandum of law in opposition to Westermann Clark motion to dismiss on jurisdictional grounds

My talk in Boston March 20th

Here is the announcement by the Copyright Society of the USA:

Upcoming events:
Date: March 20, 2012
Title: CAPITOL RECORDS v. REDIGI and THE FIRST SALE DOCTRINE
Location: NEW ENGLAND LAW/BOSTON 154 Stuart Street, Boston, MA ROOM 501 Time: 4:00PM

Description: Ray Beckerman’s firm is defending ReDigi, Inc., a Cambridge-based tech startup which provides its users with online cloud storage and a digital music marketplace for select song files, in Capitol Regords v. ReDigi. The action was commenced on January 6th, and Capitol Records’ motionfor preliminary injunction was denied on February 6th. The case involves the question of whether digital music files are, in the first place, subject to the Copyright Act’s “distribution right”, and if so whether under the circumstances presented by ReDigi’s technology and business methods are nevertheless subject to the “copyright exhaustion” and “first sale” exceptions to the distribution right, which attach to the resale of a single, particular copy as to which the copyright owner has already received its compensation on the “first sale”.

Flyer (PDF)

Lexis Nexis announcement

New England Law School announcement

Tuesday, March 13, 2012

March 20th talk at New England Law in Boston cohosted by Copyright Society of USA New England chapter

CAPITOL RECORDS v. REDIGI and THE FIRST SALE DOCTRINE

A presentation by Ray Beckerman, Esq. of Ray Beckerman, PC

March 20, 2012 4 pm – 6 pm

NEW ENGLAND LAW/BOSTON

154 Stuart Street, Boston, MA

ROOM 501

presented by

The Entertainment and Sports Law Organization and Intellectual

Property Law Association of New England Law/Boston

in connection with

THE COPYRIGHT SOCIETY OF THE USA/New England Chapter

Patti Jones, Esq. and Lucy Lovrien, Esq. Co-Chairs

Ray Beckerman’s firm is defending ReDigi, Inc., a Cambridge-based tech startup which provides its users with online cloud storage and a digital music marketplace for select song files, in Capitol Regords v. ReDigi. The action was commenced on January 6^th, and Capitol Records’ motion for preliminary injunction was denied on February 6^th. The case involves the question of whether digital music files are, in the first place, subject to the Copyright Act’s “distribution right”, and if so whether under the circumstances presented by ReDigi’s technology and business methods are nevertheless subject to the “copyright exhaustion” and “first sale” exceptions to the distribution right, which attach to the resale of a single, particular copy as to which the copyright owner has already received its compensation on the “first sale”.

Google, recognizing the importance of the case, sought leave to submit an amicus curiae brief in support of ReDigi’s position in connection with the preliminary injunction motion, but the Judge denied permission.

Ray is associated with Ray Beckerman, PC, in Forest Hills, Queens,in New York City, where he works side by side with his colleague Ty Rogers. He is a veteran commercial litigator, and the author of the popular internet law blog, “Recording Industry vs. The People”. He is known as “NewYorkCountryLawyer” on slashdot.org and as @raybeckerman on Twitter.

Ray attended law school at night, at St. John’s University School of Law, while

working during the day at Phillips, Nizer, Benjamin, Krim & Ballon

An Introduction to the First Sale Doctrine will be presented by Professor Russell VerSteeg of New England Law/Boston.

ALSO SEE: Capitol Records v ReDigi and www.csusa.org

RSVP: patti@pattijones.com or pattijones.esq@comcast.net

Email: patti@pattijones.com or
pattijones.esq@comcast.net
Office phone: 617-948-2139
Office fax: 617-948-2501
20 Park Plaza, Suite 400
Boston, MA 02116

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