Recording Industry vs The People

Tuesday, June 10, 2008

Briefing schedule extended in Capitol v. Thomas

In Capitol v. Thomas, the Court has extended by 1 week all of the briefing deadlines, including the deadline for amicus briefs, which has been extended from June 13th to June 20th.

The August 4th argument date remains unchanged.

June 6, 2008, Order extending briefing schedule

Keywords: 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

2 "John Does" in North Carolina move to strike, submit informal opinon of regulatory body that unlicensed investigation violates law

You may recall a "John Doe" case against 38 different "John Does", LaFace v. Does 1-38, targeting North Carolina State University students, which was dismissed as to all but one of the John Does for misjoinder.

The RIAA commenced separate actions against some of the John Does, and in two of those cases, SONY v. Doe and Warner v. Doe, the defendants have moved to

-dismiss the complaint
-strike the Linares declaration, and
-quash the subpoena.

Among other things, the students' motion papers attach an Informal Opinion of the North Carolina Private Protective Services Board, based upon submitted facts, which states:

we understand that individuals claim to have accessed the hard drives of private citizens to look for music recordings that are being stored. If information is found showing that music is being stored, the individual will then sell that information, along with the internet protocol address, to certain companies that are interested in obtaining that information. The information may then be used as evidence in court. In essence, it appears that individuals may be performing services on a contractual basis to determine the identity, habits, conduct, activity, transactions, or acts of individuals.

If the above information supplied is correct and it is found that the individuals do not hold a private investigators license issued by the Board, it is the opinion of the Board's staff that such activities violate the Private Protective Services Act.

Warner v. Doe Motion to Dismiss, Strike, and Quash
Brief
Robertson Affidavit with Exhibit, May 14, 2008, Informal Opinion of North Carolina Private Protective Services Board
Proposed Stay Order
SONY v. Doe Motion (Similar papers filed in support)

Will 9th Circuit agree with 7th Circuit in "throwing in the towel" case, Interscope v. Leadbetter?

In Interscope v. Leadbetter, another "throwing in the towel" case in which the defendant's right to attorneys fees is at issue, the appeal has been fully briefed.

The Seventh Circuit has held that a copyright defendant is presumptively entitled to attorneys fees where the plaintiff voluntarily dismisses with prejudice, in Rivera v. Jones and, more recently, in Mostly Memories v. For Your Ease ("There is no question that a dismissal with prejudice makes the defendant the prevailing party for purposes of an award of attorney’s fees under § 505. Claiborne v. Wisdom, 414 F.3d 715, 719 (7th Cir. 2005). This is no less true when a case is dismissed because the plaintiff “threw in the towel”—that is, where the dismissal is on the plaintiff’s own motion. Riviera Distributors, Inc. v. Jones, 517 F.3d 926, 928 (7th Cir. 2008)")

Plaintiffs-Appellees' brief*
Defendant-Appellant's reply brief*

* Document published online at Internet Law & Regulation

Monday, June 09, 2008

New 7th Circuit case holding that copyright defendants are presumptively entitled to attorneys fees even where plaintiff "threw in the towel"

A new decision has been handed down by the US Court of Appeals for the Seventh Circuit, Mostly Memories v. For Your Ease, which holds that a prevailing copyright defendant is presumptively entitled to an attorneys fees award, even where the dismissal came about because the plaintiff "threw in the towel".

The Court further held that the presumption is "very strong".

Mostly Memories is consistent with Bridgeport Music v. WB Music and Riviera Distributors, Inc. v. Jones.

May 27, 2008, Decision, Mostly Memories v. For Your Ease

[Ed. note. As most of you know, this is a very important principle in the RIAA cases, since the RIAA's "throwing in the towel", and then trying to avoid paying attorneys fees, is the most common scenario in cases where the defendant refuses to pay the RIAA's extortion demand. The Mostly Memories decision is directly relevant to the appeals in Warner v. Stubbs, Lava v. Amurao, and Interscope v. Leadbetter, and to the pending "throw in the towel" motion in Elektra v. Licata. The RIAA is fond of arguing, in these "throw in the towel" cases, that the plaintiffs should not be assessed with attorneys fees for suing the wrong person.... that it was really the defendant's fault, and therefore plaintiffs' frivolous conduct wasn't really frivolous. If the rule enunciated by the Seventh Circuit, following the Supreme Court's Fogerty holding, is followed, then it just won't be an issue anymore whether the RIAA's laziness and irresponsibility is or is not sufficient to warrant attorneys fees: the attorneys fees will be awarded because the RIAA sued and lost, absent some exceptional circumstance justifying the RIAA's failure to properly investigate. That will go a long way towards stopping the RIAA from continuing to file more meritless cases. - R.B.]

Saturday, June 07, 2008

In Boston University case, students file supplemental papers indicating Carlos Linares is not admitted to the bar in DC or in MA

In Arista v. Does 1-21 (renamed by the Court as "London-Sire v. Doe 1"), where "John Doe" Boston University students have moved to strike the Carlos Linares declaration based upon the illegal use of unlicensed investigators, the students have submitted -- in response to the RIAA's claim that Mr. Linares hired MediaSentry and in doing so he was acting as the record companies' lawyer -- supplemental memoranda indicating that Mr. Linares

-is not admitted to practice law in the District of Columbia, where he maintains his office, or

-in Massachusetts, where the investigation was.

[Ed. note. "Oh what a tangled web we weave, When first we practise to deceive!" Sir Walter Scott, Marmion, Canto vi. Stanza 17. -R.B.]

Supplemental memorandum in support of motion to strike*
Correction to supplemental memorandum in support of motion to strike*

* Document published online at Internet Law & Regulation

Friday, June 06, 2008

Defendant "John Does" file reply papers in University of Maine case, Arista v. Does 1-27

In Arista v. Does 1-27, a case targeting University of Maine students, the "John Does" represented by Portland's Mittel Asen law firm have filed their reply memoranda in support of their motions to strike the Carlos Linares declaration, and to vacate the ex parte discovery order and quash the subpoena issued pursuant to that order, responding to the RIAA's opposition papers

Reply memo in support of motion to vacate and quash*
Reply memo in support of motion to strike*

* Document published online at Internet Law & Regulation

RIAA spends $1.5 million on lobbying in first quarter of 2008

According to Steve Meyer at Disc & D.A.T., the RIAA spent $1.5 million on lobbying in the first quarter of 2008 alone. By my calculations that's $6 million per year.

[Ed. note. Apparently, since they can't win fair fights in open court, they are taking the fight to the back rooms, where pesky defendant's lawyers aren't allowed. -R.B.]

Thursday, June 05, 2008

Study finds that record company methods for detecting infringement are inconclusive

As reported by the New York Times, an academic study out of the University of Washington has found the record industry's methods of detecting infringement among BitTorrent users to be "inconclusive". I would appreciate input from the technical community, in our "comments" section, on the extent to which these findings would be applicable to MediaSentry's supposed "detection" of infringement among FastTrack users, as opposed to BitTorrent users, since every single lawsuit of which I am aware involves the FastTrack or Gnutella protocols, rather than BitTorrent. Thanks to my many friends who alerted me to this article and study. -R.B.

The Inexact Science Behind DMCA Takedown Notices
By Brad Stone
June 5, 2008
New York Times Technology Section

A new study from the University of Washington suggests that media industry trade groups are using flawed tactics in their investigations of users who violate copyrights on peer-to-peer file sharing networks.

Those trade groups, including the Motion Picture Association of America (M.P.A.A.) Entertainment Software Association (E.S.A.) and Recording Industry Association of America (R.I.A.A.), send universities and other network operators an increasing number of takedown notices each year, alleging that their intellectual property rights have been violated under the Digital Millennium Copyright Act.

Many universities pass those letters directly on to students without questioning the veracity of the allegations. The R.I.A.A. in particular follows up some of those notices by threatening legal action and forcing alleged file-sharers into a financial settlement.

But the study, released today by Tadayoshi Kohno, an assistant professor, Michael Piatek a graduate student, and Arvind Krishnamurthy, a research assistant professor, all at the University of Washington, argues that perhaps those takedown notices should be viewed more skeptically.

Complete article

The underlying study: "Challenges and Directions for Monitoring P2P File Sharing Networks – or – Why My Printer Received a DMCA Takedown Notice" By Michael Piatek, Tadayoshi Kohno, and Arvind Krishnamurthy (PDF)

Commentary & discussion:

Electronic Frontier Foundation
Linha Defensiva (Portugese)

Wednesday, June 04, 2008

Correction to Columbia University story

The previous story which I had published on Arista v. Does 1-33, brought in Manhattan and targeting Columbia University students, was completely wrong. Apparently the judge had signed an ex parte discovery order, which just never found its way into the Court's docket sheet.

[Ed. note. Thanks to readers "marc_w_bourgeois" and "Alter_Fritz", for reading more carefully than I had. Sorry about that folks. -R.B.]

Complaint*
Ex Parte Motion*
Carlos Linares Declaration*
Memorandum of Law*
May 21, 2008, Order, holding case in suspense until John Does have been served*
Notice of adjournment*

* Document published online at Internet Law & Regulation

Tuesday, June 03, 2008

RIAA opposes reconsideration motion re MediaSentry subpoena in UMG v. Lindor

In UMG v. Lindor, the RIAA has filed papers opposing Ms. Lindor's reconsideration motion regarding the Magistrate Judge's preliminary order denying her motion to compel MediaSentry to respond to the subpoena duces tecum that was served upon it.

Letter of Victor B. Kao to Hon. Robert M. Levy*

* Document published online at Internet Law & Regulation

To contribute to Marie Lindor's legal defense, see below.
The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.

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