Recording Industry vs The People

Saturday, September 17, 2011

1st Circuit declines to reach Due Process issue in SONY v Tenenbaum, reverses & remands for further proceedings #law

In SONY BMG Music Entertainment v. Tenenbaum, in a 65-page decision, the First Circuit Court of Appeals has declined to decide the issue of whether the jury's award of $22,500 per infringed work was unconstitutional under due process grounds, and remanded the case to Judge Gertner for further proceedings, on the ground that the lower court's ruling on the due process issue was premature.

The court held that under the doctrine of judicial restraint, the trial court is required to first decide the common law remittitur issues, a step with which Judge Gertner had dispensed.

The court noted the longstanding judicial doctrine that constitutional issues should not be reached if they are avoidable. The court gave a few examples of possible scenarios following a remittitur decision which would have dispensed with the need for the district court's decision of of the constitutional question.

(Ed. note. In layman's terms: the 1st Circuit hasn't decided whether the jury's award is excessive or not. Next step is for Judge Gertner to decide whether the jury's award is excessive on "common law", "remittitur" grounds, and if so, by how much. -R.B.)

(Ed. note. Numerous unrelated arguments which had been made by Tenenbaum were rejected. - R.B.)

September 16, 2011, opinion of US Court of Appeals for 1st Circuit

Commentary & discussion:

Techdirt
p2pnet.net
Technology & Marketing Law Blog (Venkat Balasubramani)

Keywords: lawyer 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 portable music player

Tuesday, August 23, 2011

Judge upholds DMCA safe harbor protection for MP3Tunes

In Capitol Records v. MP3Tunes, Inc., District Judge William H. Pauley has ruled that the digital music locker business of MP3Tunes is protected from copyright infringement claims by the safe harbor provisions of the Digital Millenium Copyright Act.

August 22, 2011, decision, partially granting, and partially denying, summary judgment motions

Commentary & discussion:

Technology & Marketing Law Blog ~ Eric Goldman

Keywords: lawyer 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 portable music player

Monday, August 22, 2011

Judge again reduces award to $2250 per infringed work in Capitol Records v Thomas-Rasset

In Capitol Records v. Jammie Thomas-Rasset, the Court again reduced the verdict to $2250 per infringed work, in a 43-page decision handed down on July 22nd. This time the decision was based on constitutional, due process, grounds.

Judgment was immediately entered in that amount.

Today, the RIAA appealed.

July 22, 2011, decision
RIAA notice of appeal

Keywords: lawyer 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 portable music player

Sunday, July 10, 2011

"Memo of understanding" between RIAA, MPAA, & which ISP's?

Thank you to the great Bruce Gain, an excellent investigative tech writer who's covering this subject, for bringing this issue to my attention:

It appears that the RIAA and the MPAA have gotten together and created a collusive "Memorandum of understanding" for ISP's to sign, which calls for the signing ISP's to assist the Big 4 record companies and the Big 6 motion picture companies in enforcing their copyrights, in ways never contemplated by the Digital Millenium Copyright Act

I haven't had time to analyze it yet (it's 36 pages), but at first glance it made me kind of ill, in that it appeared to...

-violate the antitrust laws of the federal government and of various states,
-constitute abuse of copyright,
-expand the lawful copyright monopoly into an unlawful monopoly,
-overlook the First Amendment,
-overlook the fair use defense and other defenses afforded by copyright law,
-conflict with the Digital Millennium Copyright Act,
-be against public policy, and
-contradict net neutrality.

What I'm wondering about is which, if any, ISP's have signed off on this, because I'd want to do my utmost to avoid doing business with them. The document I've seen is unsigned but lists some ISP's. If your ISP is on that list, and does sign, I recommend switching ISP's asap.

What ever happened to "free enterprise"?

Commentary & discussion:

p2pnet.net

Keywords: lawyer 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 portable music player

Friday, May 13, 2011

ABA Journal: LimeWire Settles Infringement Claims for $105M

According to this report in the ABA Journal, the RIAA's case has been settled for $105 million.

Keywords: lawyer 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 portable music player

Thursday, April 07, 2011

Jon Newton of p2pnet recovering from open heart surgery

Our friend Jon Newton of p2pnet is having a rough time recovering from open heart surgery.

If you have any interesting news on subjects near and dear to Jon's heart, please post them here as comments.

Keywords: lawyer 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 portable music player

In Arista v Limewire court holds that prior awards against primary infringers do not bar award against secondary infringer

In Arista Records v. Lime Wire, the Court has issued a decision holding that the RIAA's prior recoveries against 16 primary infringement defendants, through partial collection of default judgments, with respect to 104 works, did not absolutely bar the recovery of statutory damages against Lime Wire, a secondary infringement defendant, but that the RIAA's prior recoveries would be taken into account by the Court in determining the amount of the statutory damage award against Lime Wire.

April 7, 2011, Decision Denying Defendant's Motion for Partial Summary Judgment as to 104 Works

Keywords: lawyer 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 portable music player

Tuesday, April 05, 2011

Audio of yesterday's oral argument in SONY v Tenenbaum

Audio recording of yesterday's oral arguments in
SONY BMG Music Entertainment v. Tenenbaum:

http://www.ca1.uscourts.gov/files/audio/10-1883.mp3

Keywords: lawyer 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 portable music player

Sunday, April 03, 2011

SONY v Tenenbaum appeal to be argued tomorrow morning

Press release:

Tomorrow morning at 9:30am at Boston's Moakley Courthouse, the First Circuit will hear oral argument on the appeals of Joel Tenenbaum, the Recording Industry Association of America, and the U.S. Department of Justice.

Tenenbaum will be represented by Harvard Law student Jason Harrow. Details at joelfightsback.com.

All three parties appealed after the trial judge reduced a $675,000 jury verdict for sharing 30 songs down to $67,500. The only issues remaining on appeal regard the propriety of such an award for the conduct.

INTERVIEWS ARE AVAILABLE with Charles Nesson, HLS student Jason Harrow, and defendant Joel Tenenbaum. Please email us at joelfightsback@gmail.com or call Debbie Rosenbaum at 314-761-3322 (email preferred) for interview requests.

Best wishes,
The Joel Fights Back Legal Team

Keywords: lawyer 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 portable music player

Thursday, March 10, 2011

In Arista v LimeWire court rejects RIAA contention it is entitled to statutory damages for each direct infringer

In Arista Records v Lime Group, the Court rejected that RIAA's contention that it is entitled to a separate statutory damages award for each direct infringement induced by LimeWire, holding that adopting that argument would lead to an "absurd" interpretation of the Copyright Act. The Court held instead that the RIAA's recovery would be limited to a single statutory damages award per infringed work. The Court also stated, however, that the number of direct infringers would be a factor in assessing the amount of the statutory damage awards.

March 10, 2011, Decision, rejecting RIAA's statutory damages argument

Keywords: lawyer 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 portable music player

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