Recording Industry vs The People

Wednesday, February 08, 2006

New "national counsel" appears for RIAA in Elektra v. Barker

The new "national counsel" for the RIAA have entered an appearance in Elektra v. Barker, one of the two cases in which the RIAA has advanced its new argument that merely making files available is in and of itself a copyright infringement, even without any uploading, downloading, or other copying.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Tuesday, February 07, 2006

In UMG v. Lindor RIAA Says It Needs Discovery to Oppose Summary Judgment Motion

The RIAA has opposed defendant's request for a pre-motion conference in UMG v. Lindor, arguing that it needs discovery in order to oppose Ms. Lindor's motion for summary judgment.

February 7, 2006, letter of Maryann Penney

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

RIAA's "Making Available" Argument Comes to a Head this Week

The RIAA's newly discovered argument that merely "making available" is in and of itself a copyright infringement, even without any physical copying, comes to a head this week in not one, but two, cases in Manhattan federal court, Elektra v. Barker and Atlantic v. Does.

In Elektra the issue arises in the context of a motion to dismiss complaint.

In Atlantic it comes about in a motion to vacate the ex parte discovery order.

Both sets of litigation papers may be found in our Index of Litigation Documents.

Reply papers in Elektra were filed on February 6th:

Defendant's Reply Memorandum of Law in Support of Motion to Dismiss Complaint

Defendant's reply memorandum in Atlantic was filed on February 7th:

Reply Memorandum of Law of John Doe #8 in Further Support of Motion to Vacate Ex Parte Discovery Order

For unexplained reasons, SONY BMG withdrew from both cases after the motions were made.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Zi Mei Slams Whitehead's Second "Declaration"

In their opposition papers in Atlantic Recording v. John Does 1-25, RIAA executive Jonathan Whithehead put in a second declaration, trying to justify his first declaration, which had formed the basis for the Court's ex parte discovery order.

Computer programmer Zi Mei has now submitted a reply affidavit sharply criticizing Whitehead's second declaration, pointing out its inconsistencies with the first declaration, as well as its inconsistency with the way computers work, and with the way the internet works.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Monday, February 06, 2006

RIAA Admitted in November 2004 testimony that most P2P users aren't even aware that files are able to be shared

While the RIAA has been going around trying to villify P2P end users as "pirates" and "downloaders", we have learned that on November 15, 2004, in testimony before the Federal Trade Commission, the RIAA admitted that most P2P end users whose files are in a "shared files folder" don't even know that their files are in a shared files folder:

"As an initial matter, P2P software may, upon installation, automatically search a user’s entire hard drive for content. Files that users have no intention of sharing may end up being offered to the entire P2P network. Continued sharing of personal information is hard to avoid and is facilitated by confusing and complicated instructions for designating shared items. A study by Nathaniel S. Good and Aaron Krekelberg at HP Laboratories showed that “the majority of the users…were unable to tell what files they were sharing, and sometimes incorrectly assumed they were not sharing any files when in fact they were sharing all files on their hard drive.”

See Peer-to-Peer File-Sharing Technology: Consumer Protection and Competition Issues; P2P File-Sharing Workshop – Comment, P034517; Comments of The Recording Industry Association of America (RIAA), November 15, 2004, pp. 8-9 .

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Friday, February 03, 2006

SONY BMG Withdraws from Atlantic v. Does

SONY BMG, along with BMG Music, Arista Records, and Loud Records, has voluntarily dropped out of the Atlantic v. Does 1-25 case in Manhattan federal court.

Notice of Voluntary Dismissal

SONY BMG had voluntarily dismissed its claims, last week, in Elektra v. Barker.

No explanation for the voluntary discontinuance has been given.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Marie Lindor to Move for Summary Judgment

Marie Lindor, a home health aide who has never bought, used, or even turned on a computer in her life, but was nevertheless sued by the RIAA in Brooklyn federal court for using an "online distribution system" to "download, distribute, and/or make available for distribution" plaintiff's music files, has requested a pre-motion conference in anticipation of making a summary judgment motion dismissing the complaint and awarding her attorneys fees under the Copyright Act.
Request for pre-motion conference for summary judgment motion

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Wednesday, February 01, 2006

RIAA Changing Law Firms?

We have received several reports that the RIAA is changing law firms, from Kansas City, Missouri-based Shook Hardy & Bacon to Denver, Colorado-based Holme Roberts & Owen.

Ray Beckerman, the author of this blog, who is one of the attorneys representing people who have been sued by the RIAA for having internet access accounts which were allegedly used to set up peer to peer file sharing accounts, had this comment:

It remains to be seen what significance there is to this change, other than the RIAA's dissatisfaction with its previous attorneys.

If the RIAA thinks that by changing attorneys it can somehow alter the self destructive nature of this litigation onslaught, it is mistaken.

If, on the other hand, the change in attorneys signals a change in philosophy and tone, and that present lawsuits will be discontinued, and that lawsuits will only be brought where (a) there is clear evidence of an actual copyright infringement by a defendant, and (b) there has been an unsuccessful good faith attempt to obtain a cease and desist agreement, then this will be a positive development.

But if the pit bull tactics of the RIAA's predecessor counsel are continued unabated by the new counsel, this will accomplish nothing except further damage the recording industry, and wreak havoc in people's lives.

In view of the fact that I and my associate Ty Rogers are working on a number of RIAA cases at the moment, we should know pretty soon which shoe fits.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

"Fight Goliath" Drive in Full Swing

Up to date figures on contributions to "Fight Goliath" fund raising drive for Patricia Santangelo RIAA defense

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Digital Music News Reports: "Nettwerk Chief Steps Up Challenge Against RIAA"

This in from Digital Music News:

Nettwerk Chief Steps Up Challenge Against RIAA

Last week, the RIAA received a surprising challenge from major management firm Nettwerk Music Group, home to multi-platinum artists Avril Lavigne, Sarah McLachlan, Barenaked Ladies, Dido and Sum 41. The group is now aiding accused file-swapper David Greubel in his defense against an RIAA lawsuit, exposing a rift within the music industry. Greubel was targeted by the major label trade group as part of a routine series of lawsuits, and subsequently reached out to a Nettwerk artist for assistance. The result was a commitment by Nettwerk to offer financial and legal support, potentially the first of several similar efforts.

During a recent talk radio program hosted by industry critic Bob Lefsetz, Nettwerk CEO Terry McBride pointed to further action ahead. According to McBride, several executives "have reached out" for ways to support the pushback. The end goal, according to McBride, is to "shame" the RIAA with a precedent that will terminate the continuing string of lawsuits against individual file-swappers.

Complete article

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

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