Recording Industry vs The People

Friday, July 11, 2008

Probable Cause Hearing Scheduled before North Carolina Grievance Committee over MediaSentry Unlicensed Investigation charges

We have just learned from court papers filed in Capitol v. Doe, one of the six (6) John Doe cases targeting North Carolina State University students in Raleigh, North Carolina, that a Grievance Committee hearing, to determine the existence of probable cause, has been scheduled by North Carolina's Private Protective Services Board, in connection with the complaints that have been filed charging MediaSentry with the crime of unlicensed investigation.

The hearings are scheduled to take place on December 10, 2008, at 1:00 P.M., in Raleigh, North Carolina.

Defendant's brief
Affidavit of Stephen Robertson
Exhibit C - Notice of Grievance Committee hearing to determine probable cause

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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

Parties file reply briefs in Capitol v. Thomas

In Capitol v. Thomas, both sides have filed their reply briefs responding to each other's initial briefs and the amicus curiae briefs.

The judge also granted all of the motions by the amicus curiae for their briefs to be accepted.

Oral argument is scheduled for Monday, August 4th, at 10:00 A.M., in Courtroom 1, at the federal courthouse in Duluth, Minnesota, and is open to the public.

Plaintiffs' Reply Brief
Defendant's Reply Brief

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Duluth News Tribune

Code of Best Practices for Fair Use in Online Videos Announced

While the large content owners would like nothing better than to 'leave up to the courts', on a case-by-case basis, what is a 'fair use', it is not workable for creators, it is not fair to the public, and it is not consistent with the underlying principles of copyright law, for creators to have to live with that kind of uncertainty.

Which is why the Center for Social Media at American University, the same folks who brought you a 'Code of Best Practices for Fair Use' for documentary filmmakers, announced last year that they would be undertaking a project to develop a similar code for user-generated online content.

This month they have announced their Code of Best Practices in Fair Use for Online Video.

The code is available online and in *pdf. (PDF)

Now let us hope this helps to put an end to the atmosphere of constant litigation and terror that the large content owners have created.

Thursday, July 10, 2008

PDF Files Operating Smoothly Once Again

We've received word from the good folks at Internet Law & Regulation that they've completed the work on the servers, and all the *pdf litigation documents they're hosting are back online and fully operational.

Thanks for bearing with me.

Best regards.

-Ray

Wednesday, July 09, 2008

MediaSentry's statements in Michigan administrative case contradicted by prior statements in UMG v. Lindor

You may recall that several days ago we posted some correspondence between MediaSentry's lawyer and Michigan's Department of Labor and Economic Growth, in connection with administrative proceedings in Michigan over MediaSentry's being engaged in investigation without a license.

MediaSentry's lawyer replied that

SafeNet's activities fall squarely within the 1989 Opinion of the Michigan Attorney General, Frank J. Kelly, which excepts persons who are providing testimony in a lawsuit based on factual information gathered by application of technical knowledge. See 1989-1990 Mich. Op. Atty. Gen. . 263 1989 WL 445979 (Mich.A.G.) (the "Opinion"). The Opinion expressly cites the example of a chemical engineer who took photographs of, and samples from, the scene of a fire and from them prepared exhibits for use in Court. See id. The Opinion also included physicians, geologists and surveyors in the category of those who ought to enjoy the exception. SafeNet utilizes technical expertise in gathering factual evidence for use in just the same way as those other professionals, and thus enjoys the same exception. (Italics supplied)

Just for the heck of it we dug up some of their statements, and the RIAA's statements, from UMG v. Lindor, directly contradicting those representations, and representing to the Lindor court the exact opposite: saying that MediaSentry didn't rely on its technical expertise at all, but was just doing what any other Kazaa user does:

Excerpts from 3 documents in UMG v. Lindor denying that MediaSentry relied on its technical expertise.

[Ed. note. These people will say ANYTHING. Now let's hope that the Lindor court finds out about what they've been saying in Michigan, and the Michigan authorities find out what they've been saying in Brooklyn. -R.B.]

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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.

Sunday, July 06, 2008

Today's Duluth News Tribune devotes full page to Capitol v. Thomas, terms Judge Davis decision "admirable" and "extraordinary"

The Duluth News Tribune has devoted the entire front page of today's Metro Section to the new proceedings in Capitol v. Thomas, and will publish the content on its website tomorrow, DuluthNewsTribune.com.

The paper's coverage terms Judge Davis's May 15th decision both "extraordinary" and "admirable", and points out what none of the briefs have pointed out -- that the Atlantic v. Howell decision upon which the RIAA was relying during the trial had been vacated five days before the trial, not months after the trial as Judge Davis had assumed. The News Tribune also features commentary by the RIAA's spokesperson Cara Duckworth, by the undersigned, and by Jammie Thomas herself.

Due to the widespread public interest in this case, the News Tribune has kindly granted us permission to host a copy of the article:

Northland Forum, Duluth News Tribune, July 6, 2008, Section B, Page 1 (PDF).

As promised, here are the Duluth News Tribune links (unfortunately, they require you to register):

Main editorial:
http://www.duluthnewstribune.com/articles/index.cfm?id=69881§ion=opinion

Jammie Thomas:
http://www.duluthnewstribune.com/articles/index.cfm?id=69878§ion=Opinion

Ray Beckerman:
http://www.duluthnewstribune.com/articles/index.cfm?id=69880§ion=Opinion

Cara Duckworth:
http://www.duluthnewstribune.com/articles/index.cfm?id=69879§ion=Opinion

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Stephen's Web

Michigan agency investigates MediaSentry, MediaSentry responds

In Michigan, where a complaint has been filed against MediaSentry for its unlicensed investigations, the agency regulating investigators has written to MediaSentry, and MediaSentry has responded.

We recently obtained copies of the correspondence.

February 22, 2008, and March 31, 2008, correspondence

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Saturday, July 05, 2008

RICO and Abuse of Process Case, Chan v. Priority, commenced in Michigan last year, now dismissed

We have just learned that Candy Chan, the mother who had been improperly sued by the RIAA in Michigan four years ago, in Priority v. Chan, and whose 15 year old daughter was subsequently sued for alleged acts of copyright infringement committed while she would have been 13 years old, brought an action in state court in Michigan last year against Priority Records and several of its cohorts for abuse of process and RICO violations.

The action was removed to federal court, assigned to the same judge who had presided over the initial action, and dismissed in June on the ground that the allegations were "compulsory counterclaims" that were required to have been interposed in the initial action.

Complaint
June 18, 2008, Decision dismissing complaint

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Friday, July 04, 2008

Ms. Lindor opposes RIAA attempt to voluntarily dismiss "without prejudice"

In UMG v. Lindor, Ms. Lindor has responded to the RIAA's letter requesting a pre-motion conference for a motion they intend to make seeking (a) voluntary dismissal of their case "without prejudice"; (b) "discovery sanctions"; and (c) a stay of all proceedings.

July 4, 2008, Letter of Ray Beckerman to Hon. Robert M. Levy (re plaintiffs' motion for dismissal without prejudice, 'discovery sanctions', and a stay
Exhibt A-Jacobson testimony
Exhibit B-Capitol v. Foster
Exhibit C-Atlantic v. Andersen

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North Carolina court to take a "fresh look" at the NC State "John Doe" cases, issues stay of subpoena to NC State in Elektra v. Doe

In the Eastern District of North Carolina, in Elektra v. Doe, the Raleigh, North Carolina, case targeting NC State students, District Judge Louise W. Flanagan has issued a ruling indicating that she is going to take a "fresh look" at the RIAA's John Doe cases, and has stayed the subpoena which the RIAA served upon the university.

The ruling came in response to two John Does' motions to dismiss the complaint, strike the Carlos Linares declaration, and quash the subpoena.

Judge Flanagan held as follows:

Plaintiffs have filed nearly identical complaints against this defendant, and others named as defendants in the prior pending action, and many of these actions have been assigned now to me. In this case, and one other, bearing court file number 5:08-CY-116, defendant has moved to dismiss, to strike plaintiffs' affidavit,to quash subpoena,and to stay enforcement of the subpoena addressed to North Carolina State University.

In furtherance of dismissal, defendant in court file number 5:08-CY-115 seeks the court where plaintiffs' agent is asserted to have engaged in criminal activity, to strike "the second-hand [Carlos] Linares Declaration and Plaintiffs Exhibit 1 that it supports," and, where "[t]he remaining bare allegations are not enough to survive the Twombley standard," to dismiss the action. Similar argument is offered in court file number 5:08-CY-116. Urging First Amendment anonymity interests, defendant in each case seeks for the court to quash the subpoena at issue. In the interim, prior to decision on the motions, defendant in each case seeks the court to relieve North Carolina State University of any responsibility to respond to the subpoena.

In all cases before this court, the undersigned has allowed plaintiffs' expedited motion for discovery. Several of the cases assigned to me, all originating out of the prior pending action, recently have been closed upon voluntary dismissal.

For good cause shown, the motion to stay enforcement of subpoena addressed to North Carolina State University, served upon David Drooz, Associate General Counsel, is ALLOWED pending decision on remaining motions.

While motion to dismiss was raised on behalf of defendants denominated as Does #1,#18, #19, #26, #31, #33, #35, and #38, and denied, it is unclear whether defendant in either court file number 5:08-CY-115 or court file number 5:08-CY-116, were among those Does in the prior action, and, moreover, the basis for dismissal pursuant to Rule 12 is argued in these cases on grounds not fully raised in court file number 5:07-CY-298. Accordingly, a fresh look at the arguments in support of and in opposition to the motion to dismiss before the court,and attendant motion to strike, is called for. The court refers pretrial motions pending in this case to Magistrate Judge James E. Gates, for decision on the motion to quash and for memorandum and recommendation on the motion to dismiss and attendant motion to strike.

July 2, 2008, Order staying discovery and referring motions to dismiss, strike, and quash to Magistrate Judge
Brief in support of motion
Affidavit in support of motion

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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