Wednesday, August 30, 2006

Music Publishers Target Musicians Sharing Techniques on Internet Guitar Tablature Web Sites

Commentary:

I know it's slightly offtopic, but I was amazed to learn that the music publishers are now targeting musicians sharing guitar techniques on the internet:

"Guitar instruction sites shut down by music industry" (The Register)

How do they think people learn to play guitar other than to share techniques with each other? What are they trying to do, kill music altogether?

-R.B.

Keywords: digital copyright online 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 Renews Motion for Summary Judgment; Home Health Aide Who Never Used A Computer Seeks End to Litigation

Marie Lindor, the Brooklyn home health aide who's never used a computer, has renewed her request for summary judgment dismissing the complaint against her.

August 30, 2006, Letter of Ray Beckerman Requesting Pre-Motion Conference for Summary Judgment Motion and Stay of Discovery During Pendency of Motion*
February 2, 2006, Letter of Morlan Ty Rogers Requesting Pre-Motion Conference for Summary Judgment Motion*

Ms. Lindor's lawyers first wrote to the Court asking for a summary judgment pre-motion conference on February 2, 2006. The Judge indicated that he wanted pretrial discovery to take place first. Since then Ms. Lindor has answered the RIAA's written discovery requests (interrogatories, document requests, and requests for admissions), attended her deposition, made the computer in her apartment available to the RIAA for a 'mirror imaging' exam, and made her son and daughter available -- without need of a subpoena -- to testify at their depositions.

Her lawyers argued:

"With all the discovery they’ve taken, plaintiffs are no closer to making any kind of case against Ms. Lindor than when they started this action. There is simply no evidence that she did anything that would subject her to any form of liability. Ms. Lindor has never even used, or even turned on, a computer, in her life. Plaintiffs are content to let the case go on indefinitely, to use it as a convenient platform for a never ending fishing expedition against potential third parties, but it would be unfair in the extreme to the defendant to allow this to continue, as it was unfair for plaintiffs to go this far. Plaintiffs should have conducted an appropriate investigation prior to commencing suit, and should conduct whatever further investigation they wish on their own time, but defendant should not have to support plaintiffs’ investigation, when it has nothing to do with her. It is an abuse of the federal judicial system to allow a lawsuit against an individual who is clearly not the copyright infringer to be used as a convenient vehicle for investigating to find out who, if anyone, did violate plaintiffs’ copyrights.

"No doubt plaintiffs will respond to this letter with a voluminous, albeit frivolous, letter of their own, representing to the Court that they have many good ideas for pursuing further leads against other possible individuals, one of whom who may have infringed some of plaintiffs’ copyrights. But they will have nothing pointing to the defendant. There is simply no basis in the law to permit a lawsuit to be maintained against an innocent individual in order to give the plaintiffs a convenient platform for investigating to find some other individual who might be liable."

The RIAA opposed Ms. Lindor's request, arguing that it would be "more orderly" for pretrial discovery to continue for another four (4) months:

August 30, 2006, Letter of Richard Gabriel Opposing Request Pre-Motion Conference for Summary Judgment Motion and Stay of Discovery During Pendency of Motion, and Requesting Four (4) More Months of Discovery*

Additional coverage and discussion:
p2pnet.net

* Document published online at Internet Law & Regulation

Keywords: digital copyright online 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, August 28, 2006

"Recording Industry vs. The People" Taken Down, But Back Up

For about half an hour, this blog was taken down. I can't imagine who would have had an incentive to do that.
In any event, we're back.

Keywords: digital copyright online 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 Opposes Motion For Leave to File Amicus Brief in Capitol v. Foster

In an unusual move, the RIAA has opposed the motion of the Electronic Frontier Foundation, the American Civil Liberties Union, Public Citizen, the ACLU of Oklahoma Foundation, and the American Association of Law Libraries for leave to file an amicus curiae brief in Capitol v. Foster, in federal court in Oklahoma.

RIAA Opposition to Motion for Leave to File Amicus Curiae Brief*

Amicus curiae brief of EFF, ACLU, Public Citizen, ACLU Foundation of Oklahoma, and American Association of Law Libraries, In Support of Defendant's Motion for Attorneys Fees*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online 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 Asserts "Privilege" Covers Its Agreements with Investigators; Defendant Opposes in UMG v. Lindor

In UMG v. Lindor, in Brooklyn federal court, a new discovery dispute has erupted, this time over the RIAA's designation of its agreements with Media Sentry as "privileged". Ms. Lindor's counsel brought this designation to the attention of Magistrate Robert M. Levy and challenged it:

August 28, 2006, Letter of Ray Beckerman to Magistrate Robert M. Levy (Re: "Privilege" Assertion by RIAA as to Agreements with investigators)*

The RIAA will be making a motion for a protective order motion. The briefing schedule for the motion is: motion papers Sept. 27th, opposition papers Oct. 27th, reply papers Nov. 10th, oral argument Nov. 30th, 2:15 P.M.

August 28, 2006, Order of Hon. Robert M. Levy, Magistrate Judge*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online 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

Lindor Judge Rules: RIAA Can Seek Protective Order After Deposition; if videoconference deposition, RIAA Lawyer Can't be in Room

The Magistrate Judge presiding over discovery disputes in UMG v. Lindor in Brooklyn federal court, made several discovery rulings today:
August 28, 2006, Order of Hon. Robert M. Levy, Magistrate Judge*
He ruled that
1. where a deposition of the witness for UMG, Motown, and Interscope is to be done by videoconference in Los Angeles, the lawyer for the RIAA cannot be in the room with her but shall also participate by videoconference; in the alternative the RIAA can compensate defendant up to $500 to enable her lawyer to attend in person;
2. the protective order motion to keep the deposition transcripts secret must be made by formal motion and shall be made after the deposition transcripts are received; the RIAA will have 30 days to designate the portions it wants to keep confidential, the parties will have 15 days after that to "meet and confer" and try to resolve the issues amicably, and then if they are not successful the RIAA will have 30 days to make a formal protective order motion;
3. the RIAA's claim of 'privilege' on its agreements with its investigators will be determined by a protective order motion, with 'in camera' submission of the agreements to the magistrate ('in camera' = submitted to the judge but not to the other side); briefing will be completed by November 10th, and oral argument of the motion held on November 30th;
4. the issue of the timing for Ms. Lindor to make a summary judgment motion should be submitted to Judge Trager;
5. if the motion to amend the answer to assert a defense of unconstitutionality of the RIAA's $750-per-song damages theory hasn't been decided by the time of the deposition, then the plaintiffs' deposition witnesses don't have to testify on the subject of how much money the RIAA gets paid per download; if the motion is granted and another deposition needed, it will be done by telephone, with neither attorney in the room.

* Document published online at Internet Law & Regulation

Keywords: digital copyright online 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

Sunday, August 27, 2006

Free Song Download: Weird Al Yankovic Comes Out With Song & Animated Film Parody of RIAA : "Don't Download This Song"

Weird Al Yankovic has come out with a great animated film and song parody of the RIAA's "copyright" litigations. And yes, his song -- "Don't Download This Song" -- is available for a FREE LEGAL DOWNLOAD:

http://www.dontdownloadthissong.com

Keywords: digital copyright online 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, August 25, 2006

RIAA Wants to Have Their Lawyer in the Room During Videoconference Deposition in UMG v. Lindor; Ms. Lindor Also Asks for Summary Judgment Again

The RIAA is taking the position that the witness they wish to produce for UMG, Interscope, and Motown, should have her deposition taken in Los Angeles by videoconference, with their lawyer physically in the room, while Ms. Lindor's lawyer has to be 3000 miles away.
August 25, 2006, Letter of Richard L. Gabriel*

Ms. Lindor's lawyer opposes this, saying that the only possible reason for this would be to enable coaching. He pointed out that if the RIAA could afford to send Mr. Gabriel to Los Angeles, it could afford to pay for a coach ticket and motel room to enable Ms. Lindor's lawyer to go to Los Angeles too:
August 25, 2006, Letter of Ray Beckerman*

Additional commentary:
DigitalMusicWebLog

In another development in the Lindor case, Ms. Lindor is asking for permission to go ahead with her summary judgment motion, which she first requested in February.
August 25, 2006, Letter of Morlan Ty Rogers, Requesting Permission to Proceed with Summary Judgment Motion*

* Document is published online at Internet Law & Regulation

Keywords: digital copyright online 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

Thursday, August 24, 2006

RIAA Drops Stubbs Case in Oklahoma One Day After Receiving Defendant's Answer & Counterclaim!

In Warner v. Stubbs, in Oklahoma, the defendant filed her answer and counterclaim against the RIAA on August 23, 2006. In it she likened the RIAA's tactics to "extortion".

The very next day, on August 24, 2006, the RIAA turned around and asked the Judge for permission to withdraw its case:

Plaintiffs' Motion to Dismiss*

* Document available online at Internet Law & Regulation

Ms. Stubbs is represented by Marilyn Barringer-Thomson, of Oklahoma City, Oklahoma, the same lawyer who represents Deborah Foster in Capitol v. Foster.

Additional coverage and commentary:

Tech Dirt
digg.com
Ars Technica


Keywords: digital copyright online 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

Where Defendant Wiped Hard Drive in Violation of Court Order, Default Judgment Awarded RIAA in San Antonio, Texas

In Arista v. Tschirhart, in San Antonio, Texas, the judge awarded judgment to the RIAA because the defendant -- in violation of a court order directing her to produce her computer's hard drive for inspection -- had the hard drive "wiped" first, thus deleting song files that had been downloaded. The court noted that this "wiping" irreparably prejudiced the RIAA because the only evidence it had without the hard drive was "scant and piecemeal".

August 23, 2006, Order Granting Default Judgment*

Commentary: Frankly, I didn't see ANY evidence in the court's decision that DEFENDANT did it. I think she had teenage and adult children who may have done it. Why should she be punished because of something they may have done? The judge takes a pretty big leap from the fact that it was done to the unsupported conclusion that it was the defendant who did it.
-R.B.


Additional coverage & commentary:

Tech Dirt
p2pnet.net
DigitalMusicWeblog
Slash Dot
Ars Technica
p2p file sharing

* Document published online at Internet Law & Regulation

Keywords: digital copyright online 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, August 23, 2006

In New Case In Oklahoma, Warner v. Stubbs, Defendant Counters-Sues Against RIAA and Its Lawyers for Attorneys Fees

In a new case in Oklahoma, Warner v. Stubbs, the defendant has countersued the RIAA for attorneys fees:

Answer and Counterclaim*

The defendant alleges:

"12. Tallie Stubbs (“Tallie”) is an individual who resides in Oklahoma County, Oklahoma. Tallie
is 45 years old....

13. Tallie is an account holder with Cox Communications for cable, telephone, and internet services. Tallie became an account holder with Cox Communications in March 2005.

14. On information and belief, Plaintiffs’ only evidence to support their claims against Tallie is her status as an account holder with Cox Communications.

15. Plaintiffs’ alleged claims are neither well grounded in fact nor warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law....

16. Tallie seeks relief pursuant to 28 U.S.C. § 1927 (2006) from Plaintiffs (their agents and their counsel) because they have multiplied the proceedings unreasonably and vexatiously. Tallie is entitled to recover costs, expenses, and attorneys' fees reasonably incurred because of such conduct....

17. Tallie denies that she had any knowledge of KaZaa....

18. Tallie is and continues to be without knowledge of how to download music off of the internet.....

19. Despite being placed on notice that Tallie did not download any songs, the Plaintiffs filed this action against Tallie. Plaintiffs impugn Tallie’s character and subject her to demands which are closely akin to extortion.....

20. Plaintiffs have a pattern and practice of the action complained of by Tallie in her counterclaim. See, e.g., Capitol Records v. Debbie Foster, Case No. 04-1569-W, U.S. D. C. W.D. OK. See, e.g., Priority Records LLC et al., v. Ron Pierce, Case No. Civ-04-1448-R, U.S. D.C. W.D. OK, and, Sony BMG Music Entertainment, et al, Case No. Civ-04-1445-C, U.S. Case 5:06-cv-00793-C. W.D. OK....."

* Document available online at Internet Law & Regulation

Ms. Stubbs is represented by Marilyn Barringer-Thomson, of Oklahoma City, Oklahoma, the same lawyer who represents Deborah Foster in Capitol v. Foster.

Keywords: digital copyright online 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, August 22, 2006

p2pnet Calls Wilke Case Yet Another RIAA Blunder

This report in from p2pnet.net:

New RIAA p2p blunder

p2pnet.net News:- Paul H. Wilke, a 52-year-old Illinois man the Big Four Organized Music cartel is trying to nail for alleged copyright infringement, says he's never used p2p file sharing programs, let alone illicitly distributed songs or made them available for distribution online.

Nor, he says, are any of the songs cited by the Big Four's RIAA (Recording Industry Association of America) as being on his computer 'illegally,' in any way 'illegal'. Rather, he says, they were ripped from CDs he'd bought and paid for.

But these aren't the only mistakes made by the RIAA. The so-called 'trade' organization's lawyers, Holme Roberts & Owen, also managed to get Wilke's name wrong.

“With the plaintiffs bringing hundreds upon hundreds of cases through the courts each month, they're bound to mistakenly bring cases against innocent individuals with their drift net litigation tactics,” says his lawyer, Daliah Saper. “It's through this litigation machine that the RIAA has wrongly brought a suit against Paul Wilke.”

Complete article


Keywords: digital copyright online 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, August 21, 2006

Deborah Foster Seeks $50,000 in Attorneys Fees

In Capitol v. Foster in Oklahoma, the defendant Deborah Foster has filed the remaining papers in support of her application for attorneys fees, and is seeking approximately $50,000 in attorneys fees and disbursements.

The papers submitted were numerous and voluminous.

The main document, the declaration of Marilyn Barringer-Thomson, follows:

August 14, 2006, Declaration of Marilyn Barringer-Thomson*

* Document available onlint at Internet Law & Regulation

Previous articles:
http://recordingindustryvspeople.blogspot.com/2006/08/deborah-foster-asks-court-to-assess.html
http://recordingindustryvspeople.blogspot.com/2006/08/eff-aclu-american-association-of-law.html
http://recordingindustryvspeople.blogspot.com/2006/07/riaa-case-against-mother-dismissed.html

Ms. Foster is represented by Marilyn Barringer-Thomson of Oklahoma City, Oklahoma.

Keywords: digital copyright online 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

Magistrate Judge Levy Denies Informal Motion to Preclude in UMG v. Lindor; Rules Defendant Must Make Formal Motion

Magistrate Judge Levy ruled in UMG v. Lindor that Ms. Lindor's motion to preclude the RIAA from seeking to introduce evidence of song files which it did not produce in response to Ms. Lindor's discovery request should be made on formal motion papers:

August 6, 2006, Memo Endorsed Order of Magistrate Robert M. Levy*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online 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

Defendant Opposes RIAA Attempt to Examine Her Computer Hard Drive in SONY v. Arellanes

Defendant is resisting the RIAA's attempt to compel an unrestricted examination of her hard drive in SONY v. Arellanes. Her attorneys argue that the RIAA's motion fails to provide appropriate safeguards:

Opposition to Motion to Compel Inspection of Hard Drive*
Defendant's Suggested Protective Order Motion*

The RIAA's initial motion:

Motion to Compel Inspection of Hard Drive*

*Document published online at Internet Law & Regulation

Mrs. Arellanes is represented by John Browning of Browning & Fleishman, P.C., of Dallas, Texas.

Keywords: digital copyright online 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, August 16, 2006

Defendant Paul Wilke in Chicago Makes Motion for Summary Judgment, in Elektra v. Wilke

Defendant Paul Wilke has made a motion for summary judgment to dismiss Elektra v. Wilke, in Chicago federal court.

Motion for Summary Judgment*

In his motion Mr. Wilke states that

1. He is not "Paule Wilke" which is the name he was sued under.
2. He has never possessed on his computer any of the songs listed in exhibit A [the list of songs the RIAA's investigator downloaded] He only had a few of the songs from exhibit B [the screenshot] on his computer, and those were from legally purchased CD's owned by Mr. Wilke.
3. He has never used any "online media distribution system" to download, distribute, or make available for distribution, any of plaintiffs' copyrighted recordings.

Mr. Wilke is represented by Daliah Saper of Saper Law Offices 188 West Randolph, Suite 1705 Chicago, IL 60601 312.404.0066 dsaper@saperlaw.com

* Document available online at Internet Law & Regulation

Keywords: digital copyright online 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 Follows Through on Threat to Seek Gag Order in UMG v. Lindor

The RIAA has followed through on its threat to seek a gag order in UMG v. Lindor, one which would enable it to designate all or part of each deposition transcript as confidential, and would put the burden on Ms. Lindor of proving why the public should have access:
August 14, 2006, Letter of Richard Gabriel to Magistrate Robert M. Levy*
Exhibit A*
Exhibit B*

Ms. Lindor's lawyers replied the same day:
August 14, 2006, Letter of Morlan Ty Rogers to Magistrate Robert M. Levy*
Exhibit A*

See also Ms. Lindor's motion to compel plaintiffs' depositions:
August 10, 2006, Letter of Ray Beckerman to Magistrate Robert M. Levy*

* Document available online at Internet Law & Regulation




Keywords: digital copyright online 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, August 15, 2006

Report that RIAA Has Dropped "This Particular Lawsuit" Against Mr. Scantlebury

Apparently the uproar in the 'blogosphere' about Warner v. Scantlebury provoked a reaction.

Cory Doctorow reports in Boing Boing that an RIAA spokesman called him to report that the RIAA has dropped "this particular lawsuit" out of an "abundance of sensitivity".

Query: what do they mean by "this particular lawsuit"? The lawsuit against the decedent would have had to be withdrawn anyway. Are they going to now sue Mr. Scantlebury's son? Or have they given the Scantlebury family enough "grief"?

Complete article:
"RIAA's "abundance of sensitivity" ends harassment of grieving family">

About Cory Doctorow

Background on Warner v. Scantlebury.

Further coverage and discussion:
Wired Blogs
p2pnet
Ars Technica
Slashdot
gizmodo.com

Keywords: digital copyright online 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

Lime Wire Hires Charles Baker of Porter & Hedges, Houston, Texas lawyers, as Counsel to Defend RIAA Case

It has been reported that Lime Wire has chosen Charles Baker, of Houston-based law firm Porter & Hedges, LLP, to act as its defense counsel in the RIAA's case against it, Arista v. Lime Wire in Manhattan federal court.


Keywords: digital copyright online 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

Sunday, August 13, 2006

RIAA Wants to Depose Dead Defendant's Children; But Will Allow them 60 Days to "Grieve"

Just when we think we've heard it all....

In Michigan, in Warner Bros. v. Scantlebury, after learning that the defendant had passed away, the RIAA made a motion to stay the case for 60 days in order to allow the family time to "grieve", after which time they want to start taking depositions of the late Mr. Scantlebury's children:

Motion for 60-Day Stay and Extension of "Deadlines"

Thanks to John Hermann, the great Michigan lawyer who's been fighting the RIAA there, for bringing this to my attention. John's contact info: 2684 West Eleven Mile Road Berkley, MI 48072 248-591-9291 Email: JTHermanos@Earthlink.net

By the way the lawyer who signed the motion is the same lawyer who was representing the RIAA in Motown v. Nelson, in which a 15-year old girl testified that Mr. Krichbaum tried to put words in her mouth at her first deposition.

Here is a profile of the late Larry Scantlebury. Thanks to "alter_fritz", a reader of this blog, for bringing it to my attention.

A couple of interesting documents in the Scantlebury case, also brought to my attention by "alter_fritz":
1. Mr. Scantlebury had accused the plaintiffs of "telephoning him at his home, masquerading as 'settlement counselors', adopting as actual aspects of the law never litigated or resolved by an Appellate Court and expressing those non resolved factors as established guidelines"; and
2. Mr. Krichbaum's partner withdrew from the case, back in May.
(I haven't yet verified the foregoing documents, but they appear genuine.).

Additional coverage and discussion of this story at:
p2pnet.net
boing boing
ars technica
digg.com
RealTechNews
afterdawn.com
Hard OCP
BroadbandReports.com
slashdot
bit-tech.net
TechDirt
the Inquirer
CEPro
dvd-recordable.org
Athens Exchange
ZDNet
PC Pro
The Consumerist
Dutch Cowboys (Dutch)





Keywords: digital copyright online 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

EFF, ACLU, American Association of Law Libraries, Public Citizen, ACLU of Oklahoma, Come to Aid of Deborah Foster, File Amicus Brief in Support

In a landmark legal document, the Electronic Frontier Foundation, the American Civil Liberties Union, Public Citizen, the ACLU of Oklahoma Foundation, and the American Association of Law Libraries have submitted an amicus curiae brief in support of the motion for attorneys fees that has been made by Deborah Foster in Capitol Records v. Debbie Foster, in federal court in Oklahoma. This brief is mandatory reading for every person who is interested in the RIAA litigation campaign against consumers. I tried to edit the brief, and to pick out selected passages, but found it such compelling reading that I decided to reproduce it in its entirety. So here it is. For a copy in *pdf format, with pagination, table of contents, caption, and table of authorities, go to : http://www.ilrweb.com/viewILRPDF.asp?filename=capitol_foster_amicus at Internet Law & Regulation or http://www.eff.org/legal/cases/Capitol_v_Foster/amicus_in_support_of_fees.pdf at Electronic Frontier Foundation.
-R.B.

***************************************************************************************

I. STATEMENT OF IDENTITY AND INTEREST

The American Association of Law Libraries (AALL) is a nonprofit educational organization with over 5,000 members nationwide. AALL's mission is to promote and enhance the value of law libraries to the legal and public communities, to foster the profession of law librarianship, and to provide leadership in the field of legal information and information policy.

The American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan organization with over 500,000 members dedicated to the principles of liberty and equality embodied in the U.S. Constitution. The ACLU of Oklahoma Foundation is one of its regional affiliates. The protection of principles of freedom of expression as guaranteed by the First Amendment is an area of special concern to the ACLU. In this connection, the ACLU has been at the forefront in numerous state and federal cases involving freedom of expression on the Internet. Although this case was pled purely as a copyright case, its resolution has clear implications for the development of free speech on the Internet.

The Electronic Frontier Foundation (EFF) is a member-supported, nonprofit public interest organization dedicated to protecting civil liberties and free expression in the digital world. Founded in 1990, EFF represents over 11,000 contributing members. Part of EFF’s mission has been protecting the public from the abuse of copyright laws by copyright owners. As such, EFF has opposed the Recording Industry Association of America (RIAA) in its broad dragnet of lawsuits against small-scale individual file sharers that sweeps up the guilty and the innocent alike. EFF’s interest in this case is ensuring that the court is adequately briefed on the facts related to the RIAA’s mass litigation program and its effects on innocent people ensnared within its nets before ruling on whether Deborah Foster is entitled to attorneys fees.

Public Citizen is a national consumer advocacy organization with approximately 100,000 members, including about 900 members in Oklahoma. Its Internet free speech project is devoted to protecting the right of consumers and others to communicate freely over the Internet. Along with fellow amici EFF and ACLU, Public Citizen has successfully argued in several cases that when a party believes that it has been wronged by Internet speech, it is obligated to show wrongdoing on an individual basis by each proposed defendant, rather than lumping hundreds of otherwise unrelated defendants together and taking advantage of guilt by association. The RIAA and its member companies must comply with this rule like any other plaintiffs. A concomitant of the rule is that, when confronted with a substantial claim of innocence by an individual defendant, the plaintiff must respond reasonably and responsibly, and dismiss the action promptly if that is appropriate, instead of simply proceeding with the litigation in the hope that the defendant will run out of money and agree to a standard settlement. Because awards of attorney fees when music industry plaintiffs fail to behave responsibly are a necessary incentive to reasonable behavior in a litigation program which is itself intended to "send a message" to the general public to induce responsible use of the Internet, Public Citizen joins this brief.

II. SUMMARY OF ARGUMENT

This is an important case. While it may appear to many as just one woman defending herself against several large corporate copyright plaintiffs, as the court is undoubtedly aware, this lawsuit is but one battle in the broader war the RIAA is waging against unauthorized internet copying. As a result of this war, the RIAA has wrought havoc on the lives of many innocent Americans who, like Deborah Foster, have been wrongfully prosecuted for illegal acts they did not commit for over a year despite their clear innocence and persistent denials. Using questionable methods and suspect evidence, the RIAA has targeted thousands of ordinary people around the country, including grandmothers, grandfathers, single mothers, and teenagers. In its broad dragnet of litigation, the RIAA has knowingly entangled the innocent along with the guilty, dragging them through an expensive and emotionally draining process of trying to clear their names.

In deciding whether or not to grant defendant Deborah Foster’s Motion For Attorneys Fees, the court should consider the broader context of the RIAA lawsuit campaign—especially the positive effect that a fee award would have on encouraging the RIAA to be more diligent in conducting its pre-suit investigations, more prompt in dismissing suits when a defendant asserts substantial claims of innocence or mistaken identity, and more responsible in asserting its legal theories. Moreover, a fee award would encourage innocent accused infringers to stand up and fight back against bogus RIAA claims, deter the RIAA from continuing to prosecute meritless suits that harass defendants it knows or reasonably should know are innocent, and further the purposes of the Copyright Act by reaffirming the appropriate limits of a copyright owner’s exclusive rights.

III. INTRODUCTION AND BACKGROUND

This case is of critical importance to thousands of people throughout the country. Though Deborah Foster is just one woman, her battle is one that many others hope that they too can fight. The RIAA has sued over 18,000 individuals (and counting) for allegedly sharing music through file sharing networks. Using questionable methods to identify individuals it believes are violating its rights, the RIAA has carelessly cast a broad net of litigation that ensnares both the guilty and the innocent.

Yet the innocent rarely get a chance to clear their names. When the RIAA threatens suit against an individual, it makes sure to offer her a carefully chosen sum that is substantially smaller than the legal fees required to fight the accusations, even for defendants that are completely innocent non-infringers. Faced with the threat of costly litigation to defend their names and the possibility that hundreds of thousands of dollars in damages might be wrongly assessed against them by a jury, many innocent people accept these unfair settlement offers because they cannot afford the legal costs to fight back. Wielding the threat of copyright lawsuits as a club, the RIAA has already bullied thousands of average Americans into settling. Though the RIAA has the right to enforce its copyrights through lawsuits and settlements, it does not have the right to do so against people it knows or reasonably should know are innocent.

The inequities that Ms. Foster and her fellow wrongfully-accused have faced do not end there. The RIAA is not only continuing to prosecute the innocent in spite of clear evidence to the contrary but also attempting to expand the scope of its copyright protections beyond what the statutes provide. This copyright “grab” stems from the plaintiffs’ erroneous theories of secondary liability in copyright law. These theories, which the RIAA knows are wrong, attempt to put parents, employers, teachers, and other internet account holders on the hook for third-party computer activities—even when the defendant has no knowledge or ability to supervise the actual alleged infringers. Because of the vast differential in resources between plaintiffs and defendants and the strict liability and statutory damages regime of copyright law, these cases often settle, sending the message that these erroneous theories are actually correct. Unless individuals like Deborah Foster can afford to take a stand and fight back, the public may eventually believe that they have fewer rights when accused of responsibility for improper file sharing by others than they do, thus inflicting irreparable harm to the purposes of copyright law. Thus, an award of attorney’s fees helps defend the public’s legal rights and furthers the proper administration of copyright law.

In sum, this court’s decision will help determine whether defendants like Ms. Foster, who have proven their innocence to the RIAA, can afford to take a stand against their much larger foe. Equity demands that these fees be awarded in order to compensate Ms. Foster for the costs of defending against the RIAA’s unwarranted prosecution, to prevent the RIAA from knowingly continuing such erroneous prosecutions in the future, and to encourage future innocent defendants to stand up for their own innocence and advance meritorious defenses that will clarify the scope of copyright law. Thus, for equitable, compensatory, and deterrence reasons, the court should award fees to Ms. Foster.

A. The RIAA’s Campaign Against Individual Filesharers

Three years ago, the RIAA began a campaign of mass-produced lawsuits against consumers and music fans accused of sharing files on peer-to-peer (P2P) file sharing networks. Hoping to make examples out of thousands of ordinary Americans, the RIAA commenced investigations of individual file sharers in June 2003 and filed its first round of lawsuits in September 2003, suing 261 individuals for copyright infringement. Recording Industry To Begin Collecting Evidence And Preparing Lawsuits Against File "Sharers" Who Illegally Offer Music Online, Jun. 25, 2003, http://www.riaa.com/news/newsletter/062503.asp; Recording Industry Files Copyright Infringement Claims Against P2P Service, Sept. 19, 2003, http://www.riaa.com/news/newsletter/091903.asp. From this beginning, the RIAA gradually expanded its program, ramping up its monthly rounds of lawsuits to as many as 800 per month. To date, over 18,000 lawsuits have been filed against individuals. See generally RIAA v. The People: Two Years Later (2005), http://www.eff.org/IP/P2P/RIAAatTWO_FINAL.pdf.

In order to identify file sharers from P2P networks, the RIAA enlists a set of procedures that are of questionable accuracy. The RIAA’s investigators sign into file sharing networks hoping to identify users who are sharing particular songs. However, users on P2P networks are difficult to identify. Each user has a “screenname” that represents her presence on the network. This screenname is usually some kind of vague or anonymous nickname, e.g. “musicfan21”. Moreover, on many systems, multiple users can have the same screenname, further obfuscating association with a particular identity. Thus, neither that screenname nor anything else available from the P2P network alone can tie a virtual-world user directly to a specific real-world person.

Faced with this situation, the RIAA has turned to another source of information to try to match users with identities. Specifically, it records the Internet Protocol (IP) address (a sort of street address on the information superhighway) of the allegedly infringing computer logged into the P2P network and then subpoenas the Internet Service Provider (ISP) that issues the IP address for the identity of the account using that IP address at the time of the alleged infringement. However, this sort of identification is inaccurate and prone to errors is some circumstances. In order to understand why, one must first understand some technical details about IP addresses.

B. IP Addresses as Inadequate Identifiers

As noted above, an IP address is an identifier, much like a street address or telephone number, that is assigned to an internet access point so that other computers on the internet can locate it when they need to send it information, such as a website, a picture, or a music file. However, IP addresses differ from street addresses and telephone numbers in several significant ways. First, IP addresses are often dynamic (as opposed to static), meaning that every time a particular computer signs onto the internet, it can receive a different IP address than the previous time. ISPs also often share IP addresses back and forth between separate access points to maximize their availability at any given time.

Second, an IP address is not necessarily limited to a single computer or a single user. Often, a group of computers can share the same IP address, much like in a household, where multiple people can share a single telephone number. For instance, some ISPs provide home internet service subscribers with only a single IP address. Families who want to set up a wireless home network so that multiple computers around the house can access the internet can use what is called a wireless “router” to share that IP address among the computers. The router acts like a mailroom in a large company building. All messages get sent to the same physical address (the street address or the IP address) and the mailroom (router) makes sure the message gets to the right person. However, from the point of view of someone outside the building, all the people within the building share the same address. Knowing only the address from which a message originated tells nothing about who in the building sent or received the message. Similarly, knowing only the IP address tells nothing about which computer was using the IP address at the time.1

Finally, even if it could identify a particular computer that used a particular IP address, the RIAA still would not know what person was using the computer. At most, an ISP can tell the RIAA the name and billing address associated with the account. This information alone is not enough to accurately identify the person who actually engaged in the alleged file sharing. Many homes, business, and universities allow multiple people to use multiple computers throughout the day or night. Many do not even log in under a separate username

1 In fact, even store-bought devices such as the TiVo Digital Video Recorder can use a home internet network to log into www.tivo.com and download TV schedules for home recording. When the TiVo device does this, it would appear to an outside observer as if one of the family members is logging onto the internet because it would use the same IP address as the family members use when they log in.

and password. So even if a given IP address does identify a particular account or computer being used, there is no way to know which actual person is using it. This is much like identifying the street address of a restaurant or other business and trying to use that information alone to identify a specific customer who might have been shopping or snacking at a particular time and date. While such a system may occasionally yield an accurate result, the possibilities for false positive identifications are serious and significant.

C. The RIAA’s Drift Net Litigation

Because of its suspect investigation methods, the RIAA’s vast legal campaign against file sharers acts as a blunt instrument, battering both the innocent and the guilty in broad and indiscriminate strokes. The RIAA itself has likened its campaign to drift net fishing, admitting that “[w]hen you go fishing with a net, you sometimes are going to catch a few dolphin.” Dennis Roddy, The Song Remains the Same, Pittsburgh Post-Gazette, Sept. 14, 2003, available at http://www.post-gazette.com/columnists/20030914edroddy0914p1.asp. One of the first innocents caught in the RIAA’s net was Sarah Ward, a grandmother in Massachusetts who was accused of using a Windows program to download hard¬core rap music, even though her computer was a Macintosh that could not possibly run the program. RIAA v. The People, supra, at 4. Another, Marie Lindor, was sued even though she did not own a computer at the time of the alleged infringement. Download Suit Defense: ‘No PC,’ Red Herring, Feb. 3, 2006, available at http://www.redherring.com/Article.aspx?a=15592. The RIAA even sued an 83-year-old deceased grandmother, Gertrude Walton, who was accused of sharing files under the user name “smittened kitten” even though she hated computers even when she was alive. See Toby Coleman, Deceased Woman Named in File-sharing Suit, Charleston Gazette, Feb. 4, 2005, at P1A.

Yet despite being faced with clear evidence of innocence, the RIAA often delays dropping lawsuits against these innocent defendants, causing further unnecessary financial and emotional harm to these defendants until pressed by legal fees and the threat of summary judgment. Ms. Foster first informed the RIAA that she was not involved with the filesharing and that her husband or daughter might have done it in October 2004. (Koransky Decl. ¶ 2). Nevertheless, the RIAA still filed suit against her in November 2004, at which time she again denied any involvement. (Gerber Decl. ¶¶ 2-3). Even when Ms. Foster’s daughter offered to admit liability in April 2005, instead of dropping the case against Ms. Foster, the RIAA amended the complaint to allege a frivolous claim of secondary liability. (Cooper Decl. ¶ 2). The RIAA continued to string Ms. Foster along until this court finally granted a voluntary dismissal over a year later. These sorts of tactics unnecessarily burden innocent defendants with undue legal costs and emotional distress, especially when the plaintiff is in possession of uncontested evidence of their non-infringement. Furthermore, by refusing to immediately dismiss frivolous suits, the RIAA also unnecessarily burdens the courts and clogs up judicial resources.

D. Innocent Defendants are Forced to Settle

Because of the disproportionate financial and organizational power exhibited by the RIAA in its lawsuits, most defendants have settled rather than go to court. The settlements have ranged from $3,000 to $11,000. RIAA v. The People, supra, at 6. Yet these settlements mask the scope of the problem of wrongfully-accused defendants. As a preliminary step in its litigation process, once the RIAA has identified the account holder, it will contact that person offering a settlement. Faced with the Hobson’s choice of either settling now or facing large legal costs and potential uncertainty over recovering their attorneys fees, innocent defendants may find themselves making the logical though unsavory choice of settling.

However, some individuals like Deborah Foster have been brave enough to take a stand against the RIAA’s litigation machine and defend their innocence. For these individuals, the costs of mounting a defense can be astronomical, limiting this option to those who have sufficient resources. One person who can afford to mount a defense with his own funds is Shawn Hogan, a millionaire software developer who made his fortunes as CEO of Digital Point Solutions. David Goldenberg, Shawn Hogan, Hero, Wired Magazine, available at http://wired.com/wired/archive/14.08/start.html?pg=3. Hogan was accused by the Motion Picture Association of America of downloading a movie (one he claimed he already owned on DVD) from a file sharing network. Id. Hogan has dedicated himself to fighting the accusations, regardless of the cost, which he expects to surpass $100,000. Id.

While millionaires like Hogan can afford these exorbitant legal fees, the majority of those wrongly targeted by the RIAA cannot. Thus, where wrongly-targeted defendants are successful in their defense and the record demonstrates that the plaintiff knew or, had an adequate investigation been conducted, should have known that the defendant was innocent, the court should award them attorney’s fees, not only to undo some of the harm the RIAA has imposed and encourage future innocent defendants to stand up for their innocence, but also to further the purpose of the Copyright Act by providing incentives for the RIAA to limit its campaign to meritorious suits that involve actual copyright infringement and to promptly drop suits against those individuals it knows or reasonably should know are innocent.

IV. ARGUMENT

The RIAA’s driftnet litigation campaign unfairly exploits the economic position of an untold number of innocent individuals who cannot afford to defend themselves against its legal machinery. Absent the promise of an award of attorney’s fees when the copyright holder unreasonably persists, innocent defendants have little incentive to risk the turbulent and uncharted waters of a protracted legal battle. Congress gave the court the power to alleviate this imbalance of power. Section 505 of the Copyright Act enables a court to award attorney’s fees based on equitable discretion. Where, as here, one of these innocent defendants prevails in clearing her name and the plaintiff knew or should have known that she was innocent but continued to harass the defendant, the court should award attorney’s fees to compensate the victim, to deter the legal assailant, to encourage future innocent defendants to fight back, and to maintain the proper administration and balance of copyright law.

A. Courts Must Exercise Equitable Discretion in Deciding Whether to Award Attorney’s Fees to Prevailing Parties.

In civil cases arising under the Copyright Act, § 505 of the Act provides that “the court may . . . award a reasonable attorney’s fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. The decision of whether to award attorney’s fees is completely up to the discretion of the court, which must apply the same standard for awarding fees to both prevailing plaintiffs and defendants. Fogerty
v. Fantasy, Inc., 510 U.S. 517, 534 (1994). “There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the considerations . . . identified.” Id. (internal quotation marks omitted). Among the factors a court should consider in using its equitable discretion are “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Id. at 535 n.19 (citing Lieb v. Topstone Indus., Inc., 788 F.2d 151, 156 (3d. Cir. 1986)).

In Fogerty, the Court acknowledged that awarding fees to prevailing defendants in copyright cases could be just as important to furthering the purposes of copyright law as awarding fees to prevailing plaintiffs.

Because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. To that end, defendants who seek to advance a variety of meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement. Id. at 527. Thus, the Supreme Court has recognized the importance of providing the right incentives to both plaintiffs and defendants to ensure that they will proceed with meritorious claims or defenses without worrying about potential attorney’s fees.

One circuit court has also singled out the particularly important incentives awarding attorney’s fees to a prevailing defendant can create. The 7th Circuit in Assessment Technologies of Wi, LLC. v. Wire Data, Inc., 361 F.3d 434, 437 (7th Cir. 2004), held that “[w]hen the prevailing party is the defendant, who by definition receives not a small award but no award, the presumption in favor of awarding fees is very strong.” There, the plaintiff “was rather transparently seeking to annex a portion of the intellectual public domain” and the defendant needed to be encouraged to fight in order to clarify the boundaries of copyright law. Judge Posner, writing for the majority, worried that “without the prospect of such an award, the party might be forced into a nuisance settlement or deterred altogether from enforcing his rights” because the party “could not obtain an award of damages from which to pay his lawyer—no matter how costly it was for him to defend against the suit.” Id.

B. Equity Favors Awarding Attorney’s Fees for Deborah Foster’s Successful Defense.

In the present case, equitable discretion and “the considerations of compensation and deterrence” both strongly favor awarding Deborah Foster attorney’s fees for her successful defense. First and foremost, an award would provide much needed compensation to Ms. Foster for her personal expenses in defense of the RIAA’s meritless copyright suit against her. This is particularly noteworthy because Ms. Foster defended herself without any assurance that such fees would be forthcoming, even though she had communicated her innocence early and often to plaintiffs and plaintiffs continued to prosecute her case.

Moreover, it would be equitable to do so because, as the record shows, this is a prime example of the RIAA’s inadequate investigation into whether the defendants it names are actually the ones doing the file sharing, instead relying on the questionable methods described above. Though the RIAA has a right to sue those who actually infringe on its copyrights, it does not have the right to carelessly target innocent defendants and subject them to the costs of defending against baseless accusations. Where the RIAA does net an innocent “dolphin” in its drift net, it must release it as soon as possible. Where, as here, it continues to harass the defendant for over a year in spite of clear evidence of innocence, the court should provide restitution using the tool Congress envisioned for this purpose—Section 505.

Awarding attorney’s fees here also provides the necessary incentives for the RIAA to exercise greater care in its mass litigation campaign and avoid bringing similarly frivolous suits in the future. Plaintiffs are multi-billion dollar corporate copyright holders who can easily afford to bring innumerable suits in their efforts to stamp out all possible sharing of their music on the internet. Defendant, on the other hand, is an innocent individual with severely limited resources. Unless the court awards Ms. Foster her fees, plaintiffs will continue their campaign unchecked and undaunted. They will simply continue to subpoena and sue anyone whom they even remotely suspect might be an alleged infringer, refusing to walk away even when presented with plain and unequivocal evidence that they were wrong. Only a strong fee award can deter such behaviors and prevent future Ms. Fosters from having to subject themselves to this same expensive and draining ordeal after they have put forth prime facie evidence of innocence.

Moreover, the RIAA’s mass-produced lawsuits, numbering in the hundreds each month, allow it to take advantage of economies of scale. The marginal cost of each additional lawsuit is minimal for the RIAA, while the return of each settlement is quite high. The economics of this situation provide the RIAA with strong incentives to sue as many people as it can, without regard to actual guilt. Awarding attorney’s fees in cases where the RIAA knowingly and wrongfully prosecutes someone would cause the RIAA to more thoughtfully consider the merits of its case before proceeding with the suit and to immediately drop cases against those it knows are innocent.

Innocent defendants like Deborah Foster, on the other hand, cannot take advantage of the RIAA’s economies of scale. Only those with significant resources and fortitude will be able to take a stand against the RIAA’s juggernaut litigation campaign. Failure to award fees to a prevailing defendant would work a grave injustice, not only upon the present defendant, but also upon all future innocent defendants who want to mount a defense but cannot afford the legal costs.

C. Awarding Deborah Foster Attorney’s Fees Would Further the Policies of the Copyright Act.

Awarding attorney’s fees here would also further the policies of the Copyright Act by encouraging innocent defendants to fight against erroneous legal theories rather than settle. As the Court recognized in Fogerty, “a successful defense of a copyright infringement action” could help further the policies of copyright law by demarcating the boundaries of copyright law “as clearly as possible.” Fogerty, 510 U.S. at 527. The RIAA’s drift net legal strategy blurs rather than sharpens the boundaries of copyright law by sending misleading messages about the scope of secondary infringement doctrines. Such overenforcement tips the balance of copyright in favor of the copyright owners and allows them to steal away from the public a set of rights that legitimately belong to them.

The core of copyright law is a balance between the rights of copyright owners to exploit a limited monopoly as an incentive to create new works and the rights of the public to have access to those works created. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). This balance must be accurately communicated to the public so that the public can take full advantage of the rights to which it is entitled. Copyright owners and courts can communicate such a message through litigation. By indiscriminately suing parents like Ms. Foster and other account holders as part of its mass litigation legal strategy, the RIAA knowingly sends a distorted message to the public—that any account holder is secondarily liable for the actions of anyone who uses her account to download music. Though this message about secondary liability is wrong and would not hold up in court 2, it can only be corrected if defendants successfully defend themselves. If innocent defendants cannot recover attorney’s fees by successfully challenging the RIAA’s baseless claims, the majority of defendants will settle rather than fight. As a result, the public may take the RIAA’s incorrect message as the truth. Instead, courts should use attorney’s fee

2 In order to be held liable, the account holder must either have knowledge and materially contribute to the infringement, Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) or have the right and ability to supervise the infringing activity and a direct financial interest in it, A&M Records v. Napster, Inc., 239 F.3d 1004, 1022 (9th Cir. 2001).

awards to encourage legitimate defenses of copyright infringement against clearly erroneous theories advanced by plaintiffs to help affirm the correct boundaries of copyright law and send the correct message to the public. Fogerty, 510 U.S. at 527.

Overenforcement of copyrights also cuts against the primary purpose of copyright law and steals from the public the set of benefits copyright law was intended to provide it. “The copyright law . . . makes reward to the owner a secondary consideration. . . . Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” Sony, 464 U.S. at 429, 431¬32. In Assessment Technologies, the Seventh Circuit recognized that harms to the public would occur where a copyright owner used “an infringement suit to obtain property protection . . . that copyright law clearly does not confer, hoping to force a settlement or even achieve an outright victory over an opponent that may lack the resources or the legal sophistication to resist effectively.” 361 F.3d at 437. Here, the RIAA is attempting to do just that. If the RIAA is allowed to misinform the public about the scope of secondary liability law, the public will refrain from behaviors that are actually encouraged by copyright law. Fearing secondary liability, parents may restrict their children’s internet access. Hotels, public spaces, and businesses may stop providing public internet access to their patrons. Access to creative works may be chilled.

Unless innocent defendants can recoup their fees after a successful defense against copyright claims holders that unreasonably persisted in claims that they knew or should have known were fallacious, the RIAA will be able to expand its control over behavior beyond what is sanctioned by copyright law. Therefore, to support the strong copyright public policy of access to information, the court should award fees in this case.

V. CONCLUSION

For the reasons discussed above, the defendant Deborah Foster should be
awarded attorney’s fees.

Dated: August 9, 2006 Respectfully submitted,
By: /s/ Patrick E. Carr Patrick E. Carr, OBA #1506
pcarr@carrcarr.com
A. Laurie Koller, OBA #16857
lkoller@carrcarr.com
Attorney at Law
www.workingforyou.com
4416 South Harvard Avenue Tulsa, OK 74135 918-747-1000 918-747-7284- fax
Jason M. Schultz (CA Bar # 212600) Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 415-436-9333 415-436-9993 Fax



*************************************************************************************


Keywords: digital copyright online 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 Asks Court to Order Hard Drive Inspection in SONY v. Arellanes in Texas.

In SONY v. Arellanes in Texas, the RIAA has made a motion to compel an inspection of the hard drive of defendant's computer.

Motion to Compel Inspection of Hard Drive*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online 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

Brooklyn Judge Follows Arizona and Texas Cases; Denies Motion to Dismiss in Maverick v. Goldshteyn

Judge Trager in Brooklyn federal court has followed the decisions of the district courts in Arizona and Texas, and denied defendant's motion to dismiss the complaint, in Maverick v. Goldshteyn.

July 31, 2006, Decision of Judge David G. Trager

Keywords: digital copyright online 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 Sues Grandmothers in Kentucky

This just in from the Lousville Courier-Journal:

Illegal downloads create unlikely defendants
Music industry seeks to protect copyrights

By Amy H. Trang
atrang@courier-journal.com
The Courier-Journal

Kathy Hartness is a 47-year-old grandmother, churchgoer and gardener who had never been in trouble with the law -- until she was served with papers in June for something she did more than a year ago.

She is one of three Kentuckians sued so far this year by national recording companies for violating copyrights by illegally downloading and sharing songs and music videos off the Internet.

Hartness, a Louisville resident, and her teenage daughter downloaded music -- such as Bonnie Raitt's "I Can't Make You Love Me" and Alabama's "Dixieland" -- after a friend told them about KaZaA. It's a peer-to-peer -- or P2P -- Internet sharing network that lets people download music and other material from another member's computer for free.

Hartness stopped a year ago, after news stories reporting that 11 Kentuckians had been sued for illegal sharing and downloading.

But it was too late. The recording companies were already tracking her down.

"I really didn't know I was doing anything wrong …" Hartness said. "When they say that 4 million people are on there (KaZaA), it must be OK, or why would there be so many people on there?"

................................

Iola Scruse, 66, of Louisville, must pay $6,000 for the 872 songs her grandchildren downloaded, in addition to court fees. Scruse also is racking up medical bills for dialysis. (By Arza Barnett, The Courier-Journal)

...............................






Complete article

Keywords: digital copyright online 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

Law Schools Teaching Digital Music Law

We've recently learned of a law school course on digital music law, taught by Prof. Jeremy DeBeer, at University of Ottawa and the Universidad de Puerto Rico. Here are Prof. DeBeer's course materials on the RIAA v. Consumer litigations:
http://www.jeremydebeer.ca/content/view/71/21/

Keywords: digital copyright online 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

Thursday, August 10, 2006

RIAA Asks for Blanket Gag Order Before Attending Depositions in UMG v. Lindor; Ms. Lindor's Lawyers Refuse, Ask Judge to Compel Depositions

In UMG v. Lindor the RIAA has refused to go forward with letting the defendant's lawyers take plaintiffs' depositions without a blanket confidentiality stipulation making all of the contents of the deposition transcripts confidential.

In view of the strong public interest in these cases, Ms. Lindor's lawyers refused to agree to such a stipulation.

Instead they have made a motion to compel the plaintiffs to appear for their depositions, without any preconditions.

In the alternative, Ms. Lindor's lawyers said they would consent to a limited order that would give the RIAA 10 days after receiving a copy of the transcript to object to specific portions of it being disclosed.

August 10, 2006, Letter of Ray Beckerman to Magistrate Robert M. Levy*

* Document available online at Internet Law & Regulation

Keywords: digital copyright online 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, August 08, 2006

Followup Interrogatories Served in UMG v. Lindor

Marie Lindor has served a set of followup interrogatories in UMG v. Lindor.

Defendant's Second Set of Interrogatories

In response to her first set of interrogatories in which she asked the plaintiffs for the "evidentiary basis" for their allegation of copyright infringement, she received only a vague response. At a July 25th conference, she was given permission by the Magistrate to serve followup interrogatories.

Keywords: digital copyright online 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

Deborah Foster Asks Court to Assess Attorneys Fees Against RIAA in Oklahoma

Following up on the Court's July 13th order, Deborah Foster has filed a motion for attorneys fees, in Capitol Records v. Foster, in federal court in Oklahoma. We have obtained some of the documents forming the basis of the motion:

Memorandum of Law in Support of Deborah Foster's Motion for Attorneys Fees*
Declaration of Richard B. Wilkinson in Support of Deborah Foster's Motion for Attorneys Fees*
Motion for Leave to Supplement Motion for Attorneys Fees*
Motion for Scheduling Order of Deborah Foster's Motion for Attorneys Fees*


Will furnish the remaining documents when we obtain copies.

This is the case against a mother -- whose only connection to the alleged filesharing was that she was the person who paid for the internet access -- which was withdrawn by the RIAA.

Faced with the mother's motion for leave to file a summary judgment motion dismissing the case against her, and awarding her attorneys fees, the RIAA made its own motion for permission to withdraw its case.

The Court granted the motion and let the RIAA drop its case.

The Court went on to hold that the defendant, Ms. Foster, is the "prevailing party" under the Copyright Act and is therefore eligible for an award of attorneys fees.

The Court then indicated that it would decide the attorneys fees award question upon receipt of a motion for attorneys fees.

July 13, 2006, Order Dismissing Case and Finding Defendant to be Eligible for Award of Attorneys Fees against Plaintiffs*

Well now a motion for attorneys fees has been filed.

For background of the case see:
Amended Answer and Counterclaims*

* Document available online at Internet Law & Regulation

The attorney for Ms. Foster is Marilyn D. Barringer-Thomson, in Oklahoma City, Oklahoma.

Steve Gordon, a New York-based entertainment attorney, formerly in house counsel at SONY, and the author of the well known book on digital music "The Future of the Music Business", had this comment on Capitol v. Foster:

"This case demonstrates weakness in RIAA's cases in general. If they cannot back up their claims of infringement with legally required evidence, this could affect all their cases and encourage more defendants to fight back -- especially if, as in this case, the court awards attorneys fees for the defendant."


Keywords: digital copyright online 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, August 07, 2006

Copy of Complaint in Arista v. Lime Wire

The RIAA has sued Limewire in Manhattan federal court.

Copy of complaint in Arista v. Lime Wire*.

The RIAA accuses Lime Wire of encouraging its users to share as many files as possible:

Defendants have taken steps to ensure that LimeWire users “share” a large number of files on LimeWire, thereby maintaining the draw and reputation of LimeWire as a vast, unauthorized repository of commercial sound recordings. For example, Defendants designed the LimeWire installation process to automate the copying of sound recording files to the designated “share” location. Indeed, Defendants further designed LimeWire to punish those users – called “freeloaders” by LimeWire – who do not “share” enough files with other LimeWire users. Freeloaders can be blocked from downloading files from a LimeWire user if that user so chooses. Defendants highlight and promote the “freeloader” blocking feature on the LimeWire website, stating, for example, “If you’re not sharing enough files, users with certain connection preferences won’t let you connect to them for downloading. For this reason, we recommend all LimeWire users share generously with one another”. As the vast majority of the files “shared,” i.e. copied, through LimeWire are copyrighted sound recordings owned by the 12 Plaintiffs, the Defendants’ exhortation for LimeWire users to “share” files is a call for LimeWire users to engage in unlawful reproduction and distribution of Plaintiffs’ copyrighted material.
We will not offer regular coverage of this case, since it is not a case against consumers, but will occasionally post important documents or events, since they may be of interest to our readers.

* Document published online at Internet Law & Regulation

Keywords: digital copyright online 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, August 04, 2006

Discovery Dispute in UMG v. Lindor; RIAA Wants to be Able to Prove 38 Songs even though it Produced only 11 song files

In UMG v. Lindor, in Brooklyn, a discovery dispute has erupted.

In response to a document request calling for all of the "song files",the RIAA produced a total of eleven (11) song files.

Now, however, they are claiming that they are suing over thirty eight (38) songs.

Ms. Lindor has moved to preclude them from claiming more than eleven (11) songs.

July 28, 2006, Letter of RIAA*
July 28, 2006, Letter of Defendant*
August 1, 2006, Letter of RIAA*
August 1, 2006, Letter of Defendant*
August 4, 2006, Letter of RIAA*
August 4, 2006, Letter of Defendant*
Exhibit - Plaintiffs' Requests for Admissions, October 2005*
Exhibit - Defendant's Response to Plaintiffs' Requests for Admissions, March 2006*



Keywords: digital copyright online 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

Attorneys Fee Motion in Capitol v. Foster Due Monday, August 7th

The attorneys fee motion being made by Deborah Foster in Capitol Records v. Foster, in federal court in Oklahoma, is due by Monday, August 7th.

This is the case against a mother -- whose only connection to the alleged filesharing was that she was the person who paid for the internet access -- which was withdrawn by the RIAA.

Faced with the mother's motion for leave to file a summary judgment motion dismissing the case against her, and awarding her attorneys fees, the RIAA made its own motion for permission to withdraw its case.

The Court granted the motion and let the RIAA drop its case.

The Court went on to hold that the defendant, Ms. Foster, is the "prevailing party" under the Copyright Act and is therefore eligible for an award of attorneys fees.

The Court then indicated that it would decide the attorneys fees award question upon receipt of a motion for attorneys fees.

July 13, 2006, Order Dismissing Case and Finding Defendant to be Eligible for Award of Attorneys Fees against Plaintiffs*

For background of the case see:
Amended Answer and Counterclaims*

* Document available online at Internet Law & Regulation

The attorney for Ms. Foster is Marilyn D. Barringer-Thomson, in Oklahoma City, Oklahoma.

Steve Gordon, a New York-based entertainment attorney, formerly in house counsel at SONY, and the author of the well known book on digital music "The Future of the Music Business", had this comment on Capitol v. Foster:

"This case demonstrates weakness in RIAA's cases in general. If they cannot back up their claims of infringement with legally required evidence, this could affect all their cases and encourage more defendants to fight back -- especially if, as in this case, the court awards attorneys fees for the defendant."



Keywords: digital copyright online 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

Stipulation and Order Entered for Hard Drive Mirror Imaging Examination in UMG v. Lindor

In UMG v. Lindor, the procedures for a "mirror imaging" of the hard drive of the computer in Ms. Lindor's apartment have been worked out, partly by stipulation, partly by an order of Magistrate Robert M. Levy.
Stipulation regarding hard drive mirror imaging*
Order of Magistrate Levy regarding hard drive mirror imaging and certain other discovery matters*

* Document is available online at Internet Law & Regulation.

Keywords: digital copyright online 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, August 02, 2006

On the Importance of Elektra v. Barker

This is a personal opinion piece by Ray Beckerman, who is one of the attorneys representing Tenise Barker in Elektra v. Barker. Thanks to Jon Newton of p2pnet.net who inspired it.

What is the most important RIAA case in the country?

Arguably it's Elektra v. Barker, pending in Manhattan federal court before Judge Kenneth Karas, a recently appointed judge who is a former federal prosecutor.

Not because there's anything different about the complaint -- it's the exact same boilerplate complaint the RIAA has used in 19,000 other cases.

Not just because Ms. Barker made a motion to dismiss the complaint -- i.e. attempting to stop the lawsuit in its tracks on grounds that would be fully applicable to ALL the RIAA's cases -- because there are at least half a dozen other cases in which such motions have been made.

It is the most important case because the RIAA has made it so.

The RIAA apparently made a considered decision to choose this time and place to go for broke.

The RIAA -- seemingly deliberately -- provoked a massive confrontation, in which the MPAA, the American Association of Publishers, and the United States Attorney General, are lining up against not only Ms. Barker and all the other RIAA victims out there, but against the Electronic Frontier Foundation and the trade associations which represent most of the giants of the internet and computer industries.

Ms. Barker made a simple motion to dismiss the complaint, saying it did not give her adequate notice of the infringement she's accused of.

In response, the RIAA made its most shocking and outlandish arguments to date, claiming that merely having a 'shared files folder' on one's computer, and thereby 'making files available for distribution', is in and of itself a "distribution" and a copyright infringement. I.e., even if the recordings were legally obtained, and even if no illegal copies were ever made of them, the defendant is still guilty of copyright infringement.

Learning of this, The Electronic Frontier Foundation, The Computer & Communications Industry Association, and the U. S. Internet Industry Association -- realizing that if this absurd argument were accepted the entire internet might be shut down in the United States, since the internet is nothing more than a giant network of hyperlinks making files 'available', and also realizing that Ms. Barker doesn't have the financial resources to wage a full scale war protecting the entire internet from destruction -- were quick to file amicus curiae briefs pointing out to Judge Karas the absurdity of the RIAA's arguments.

Shortly thereafter the MPAA filed an amicus brief supporting the RIAA's argument, the American Association of Publishers requested permission to file a similar brief, and the United States Department of Justice wrote to the Court indicating the possibility of filing a "Statement of Interest".

All to collect about $6000 from a young nursing student who lives in the Bronx?

I don't think so.

Links to all the applicable litigation documents are collected under Elektra v. Barker in
http://recordingindustryvspeople.blogspot.com/2006/04/index-of-litigation-documents.html and
http://info.riaalawsuits.us

(Fortunately, publicly filed documents are in the public domain -- last I heard -- so I can still lawfully "make them available" to you.)

-R.B.

PS. The case has taken on added importance in light of the fact that of the 7 motions to dismiss of which I am aware, 5 have been denied. If this motion is also denied, it will be years before the issue can percolate up to the appellate courts, because denials of dismissal motions are ordinarily not appealable. If, on the other hand, this motion is granted, and the case against Ms. Barker thrown out, it is likely that the RIAA will appeal and the issue will get to the U. S. Court of Appeals for the Second Circuit within a matter of months. Once we have a decision from the Second Circuit -- one of the most important copyright courts in the country -- we will have a pretty good idea where we stand.


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, August 01, 2006

'Recording Industry vs. The People" initiates coverage of MPAA case against Shawn Hogan : Universal v. Hogan

We have decided to initiate coverage of an MPAA case, Universal City Studios Productions v. Shawn Hogan.

It is like the RIAA cases in that the sole basis for the case is the allegation that Mr. Hogan, by having a copyrighted file on his computer in a shared files folder, was 'distributing' it by 'making it available for distribution'.

The reasons we are covering this non-RIAA case are:
-it involves many of the same issues that arise in the RIAA cases,
-the MPAA has been engaged in cartel-like behavior in coordination with the RIAA,
-Mr. Hogan (unliked most defendants in these cases) is a litigant who is in a position to fight back, thereby increasing the likelihood of a full and fair airing of the copyright law issues

Mr. Hogan's legal team at Coast Law Group, is headed up by Seyamack Kouretchian.

Another possibly good reason for our covering it is that it appears that many other media are misreporting it as a case that involves illegal downloading of a copy of a movie: in fact the complaint says no such thing, but accuses Mr. Hogan of "making" his copy "available". Our type of coverage -- which reproduces the actual litigation documents -- may help rein in some of the speculation about this case and concentrate on the facts and genuine legal issues that are raised.

Slashdot article about Hogan case:
http://backslash.slashdot.org/article.pl?sid=06/07/26/1952201&from=rss

Selected litigation documents:

Cover Sheet, Summons, and Complaint*
Answer*
Case Management Order*
Case Management Joint Report*

Additional litigation documents will be added from time to time in the "Index of Litigation Documents".


Keywords: digital copyright online 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