Monday, March 31, 2008

Ars Technica reports that RIAA has complained about amended complaint in Andersen v. Atlantic & judge ordered plaintiff to file 3rd complaint

According to a report in Ars Technica, the RIAA has complained about the amended complaint which plaintiff filed in Andersen v. Atlantic, and the judge has ordered plaintiff to file yet another amended complaint.




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

Judge rejects RIAA "making available" theory but sustains complaint, and gives RIAA chance to replead defective theory in Elektra v. Barker

In Elektra v. Barker, Judge Karas rejected the RIAA's "making available" theory, and its "authorization" theory, but

-sustained the sufficiency of the allegations of "downloading" and "distributing", and

-gave the RIAA an opportunity to cure its defective pleading.

March 31, 2008, Decision of Hon. Kenneth M. Karas, Denying Motion to Dismiss Complaint and Granting Leave to Replead* (2008 WL 857527)

* Document published online at Internet Law & Regulation



Commentary & discussion:

Ars Technica
p2pnet.net
Slashdot
Billboard
ZeroPaid
p2pnet.net (4/2)
The Inquirer
CNet News
Slyck
Heise Online (German)
Digital Media Wire
Patry Copyright Blog
Associated Press (via SiliconValley.com)
FindLaw



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

Comment Policies for "Recording Industry vs. The People"

Comment policy for Recording Industry vs. The People:

1.No comment spam.
2.No profanity.
3.No RIAA trolls masquerading as something else (if RIAA PR flacks present themselves for who they are, they are welcome to participate).
4.No unsupported accusations.
5.No defamation.
6.No threats.
7.No unsupported anti-lawyer or anti-judge insults (if you know of something specific that a lawyer or judge did, with which you disagree, and you want to comment fairly upon it fine, but I don't want people here denigrating the legal profession with undocumented insults. I think that is a tactic used by RIAA trolls and some other big corporations who are trying to discourage ordinary people from talking to lawyers and learning about their legal rights, or from going to court to fight for their rights, thinking the system is stacked against them. Lawyers and judges are the cornerstone of the rule of law, which is the cornerstone of our democracy, and they are the closest thing we have to an equalizer in our society).
8. No legal advice, pseudo-legal advice, or misleading statements of law, or false statements of fact.
9. Comments must be related to topic of the post.
10. Nothing to detract from the dignity of "Recording Industry vs. The People" as a forum for the discussion of very important issues.
Thanks.
-R.B.



Keywords: digital copyright online 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




Sunday, March 30, 2008

Bridgeport Music case confirms attorneys fee award to defendant where no 'Fogerty Factors' shown

In Bridgeport Music v. WB Music, the Sixth Circuit has pointed out that the "Fogerty factors" were never intended by the Supreme Court to be exclusive, and that the key to "Fogerty" was evenhandedness.

The Court held that even where none of those factors are present, the Court should routinely award attorneys fees to a prevailing defendant.

In Bridgeport the Court sustained an award of attorneys fees to the defendant even though specifically finding that the plaintiff's claim was "objectively reasonable".

Copy of decision




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

Saturday, March 29, 2008

Report to my readers on the Fordham Law IP Conference

Report to my readers on my outing to the Intellectual Property Law & Policy conference at Fordham University Law School on March 28th:

I participated in 3 panels. I wasn't in a position to take detailed notes, so I'll just mention some of the highlights.

Panel #1- "Making available". The heading was: "What is the effect in the U.S. of the “making available” right? Comparative approaches in Asia, interpreting the making available right, and also the intersection with secondary liability.

The title alone gives away the bias of its author. It assumes there is a "making available" right in the United States, which even the RIAA knows is not so -- as evidenced by its removal of that theory from its complaints once Judge Brewster held that its complaint fails to state a claim in Interscope v. Rodriguez.

The keynote speaker, Michael Scheslinger, from the Washington, D.C., office of Greenberg Traurig LLP, gave an extremely misleading, and I think insincere, talk in which he stated that the existence of a "making available" right is settled law in the United States. The only authorities he had for this statement were: (1) a pro se case in which the issue was never briefed (DePietro), (2) a very weakly defended case in which the issue was never briefed (the Texas case "Atlantic v. Anderson", not to be confused with the Oregon "Atlantic v. Andersen"), (3) the jury instruction in the Thomas case (which is NOT a judicial precedent), and (4) the Hotaling case which -- if you have read the case, or even if you have only read the quotations in this blog's sidebar -- you know does not stand for the proposition that merely "making available" is a distribution. He of course omitted to mention the decision of the District of Connecticut, Atlantic v. Brennan, specifically holding that there is no such thing as "making available".

Of course when I was called on, I corrected him. And not delicately. I advised the audience that what they had heard from Mr. Schlesinger was highly misleading, and that it was clear that Mr. Schlesinger derives his revenue from content owners. I went into a more accurate description of the actual caselaw and of the important pending cases, Elektra v. Barker, Warner v. Cassin, and Atlantic v. Howell. It seemed that everyone, even including Mr. Schlesinger, was very familiar with Elektra v. Barker, and awaiting Judge Karas's decision.

Panel #2-"Statutory damages". The heading was "Should new limits be placed upon statutory damages? Did the supporters of P2P software and the individual defendants miscalculate the reaction of juries? A review of case law, e. g., Capitol Records v. Thomas, (D. Minn. 2007).

Here again the heading gives away the bias of its author.

The keynote speaker, Kenneth Doroshow, Senior Vice President of Litigation and Legal Affairs of the RIAA, chose to speak almost exclusively about the Jammie Thomas case, going into detail with his spin on the facts. He also gave his opinion as to why statutory damages should not be subject to due process scrutiny as jury trial punitive damages awards are. The host and moderator, Prof. Hugh Hansen, implied that constitutionality of statutory damages is not a serious issue.

When I spoke I tried to address the primary topic, statutory damages, rather than the facts of the Thomas case. I pointed out that the U.S. Court of Appeals for the Second Circuit, the U.S. District Court for the Eastern District of New York, and the U.S. District Court for the Northern District of California, did think constitutionality of disproportionate statutory damages was indeed a serious issue; that several excellent law review articles had taken the position that it was a serious issue; and that there was not a single authority anywhere to the effect that it was not. I also pointed out that the verdict was about 23,000 times the actual damage in the Thomas case, and that the RIAA had been seeking from 2,000 times to 450,000 times the actual damage.

I then went on to point out that I would not even be able to have a conversation with anyone who thinks a $220,000 verdict -- against $8 in actual damages -- is fair, because their values are too far removed from mine. And I pointed out that the verdict had made our country a laughingstock throughout the world.

Prof. Pamela Samuelson, of the University of California Law School, in Berkeley, said that when the statutory damages were written into the statute, Congress did not contemplate the type of infringements that are being sued for today, with 99 cent song files on p2p file sharing; that statutory damages were meant to be primarily compensatory where it is too hard to prove damage, and were not intended to be "punitive" and to make examples of people; she felt that the situation has gotten out of hand and that the RIAA's arguments as to why statutory damages exist, are wrong.

Prof. Peter Black, of the Queensland University of Technology, in Brisbane, Australia, said that he would like to confirm the accuracy of my statement that the Jammie Thomas verdict has made the United States a laughingstock in other countries.

Panel #3- "Privacy in Disclosure of Identities" The topic was "What role should privacy play in learning the identities of downloaders? A look at recent case law in the U.S. and EU (e.g. Promusicae in ECJ)

Here the title was not inflammatory, nor was the speech given by the keynote speaker,
Dr. Volker Kitz, of the Max Planck Institute for Intellectual Property, Munich / HOECKER attorneys, Cologne. The speech was informative, and basically the speaker and all of the panelists each told a bit of what he or she had to say about the balance between subscribers right to privacy, and the rights of copyright owners to find out the identity of infringers.

My discussion mentioned the Canadian BMG v. Does and the Netherlands Foundation v. UPC Nederland, cases, which stopped the RIAA's counterparts in those countries, not based upon an absolute refusal to disclose the information, but based upon those Courts' recognition of the paucity of the RIAA's "evidence", and contrasted them with the United States, where the RIAA -- by its tactic of using ex parte proceedings, and the unfortunate signing of those orders by many judges -- has managed to avoid judicial scrutiny of the privacy issue. I mentioned that there are numerous statutes respecting privacy of subscribers, covering the 3 basic types of ISP's: (a) colleges and universities, (b) commercial telephone companies, and (c) commercial cable companies. I also mentioned Interscope v. Does 1-7, where the judge on his own realized that the disclosure application was incorrect, Arista v. Does 1-17 where the Oregon Attorney General has brought to the Court's attention the privacy statutes that the ex parte discovery order is asking the University to violate, and Capitol v. Does 1-16 and Arista v. Does 1-22, where the judges recognized that these proceedings should not be ex parte.

###


Many readers have asked whether transcripts, videos, or audio recordings are available. I would imagine that Fordham Law School will be preparing audio and video materials, but that they will be sold at fairly high prices, and will not be available for broadcast. I would also imagine that a transcript might appear in one of the Law School's journals. In any event, I will pass along your inquiries and get answers to them.

-R.B.





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

Friday, March 28, 2008

Rolando Amurao fights back, argues MediaSentry must be found illegal and Matthew Oppenheim must be deposed

In Lava v. Amurao, Rolando Amurao has fought back, filing papers (a) in further support of his motion to exclude the MediaSentry evidence for having been procured illegally and to compel the deposition of Matthew Oppenheim, and (b) in opposition to the RIAA's motions for voluntary dismissal, for summary judgment on the copyright misuse counterclaim, and for discovery sanctions.

Defendant's Memorandum of Law in Opposition to RIAA's 3 motions*
Declaration of Richard A. Altman in Support of application for continuance*
Defendant's Reply Memorandum of Law in Support of Defendant's motion to compel discovery and for in limine exclusion of MediaSentry material*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
Slyck








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

When Big 4 move towards online subcription services, please do not patronize them

Excuse me folks, this is one of my off-topic posts, but I just had to get this off my chest. -R.B.

We have read, on Conde Naste Portfolio.com, that the Big 4 -- Warner Bros. Records, SONY BMG, EMI, and Vivendi/Universal -- are finally trying to get on board with selling music online on a subscription model, and that the person heading up this effort at Warner Brothers now says "I don't think we should be suing students and I don't think we should be suing people in their homes".

Well it's very nice to hear him say that, now, while his employer continues to bring new lawsuits, and to wreck the lives of innocent people, on a daily basis.

But I hope that when these idiots finally do open their subscription services, none of my readers will patronize them.

The lawsuit campaign is a campaign launched and managed by idiots, who have accomplished nothing except to hurt the lives of others while destroying their own companies.

We, the public, should remember what they have done, and not do business with them when they finally cave and beg the public to come back to them.

If you consider any subscription service, please be sure it's not one affiliated with, or even peddling the music of, any of those 4 companies or their labels (if you want to identify the labels to stay away from, that's real easy... go to the Index of Litigation Documents table of cases and look at the names of the record company plaintiffs. Here's a list: Arista, Atlantic, BMG, Capitol, Elektra, Fonovisa,
Interscope, LaFace, Lava, Loud, Maverick, Motown, Priority, SONY, UMG, Virgin, and Warner. As a matter of principle, we should never buy music from any of those companies.)

Please stick to independent music. Here's my partial list of places to get independent music online.

Thank you.

-R.B.





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






Wednesday, March 26, 2008

RIAA vice president and Ray Beckerman to share dais on Friday, March 28th, at Fordham University Law School, to discuss statutory damages

On Friday, March 28, 2008, at the 16th Annual "Intellectual Property Law & Policy" conference, a 2-day conference hosted by Fordham University School of Law in New York City, Kenneth Doroshow, the RIAA's Senior Vice President of Litigation and Legal Affairs, will speak on the subject of copyright statutory damages. Ray Beckerman, the author of this blog, will be a member of the panel for that discussion.

Other members of that panel will be Prof. Peter Black, Queensland University of Technology, Brisbane, Prof. Pamela Samuelson, University of California, Berkeley, and Ted Shapiro, Deputy Managing Director, VP & General Counsel – Europe, MPA, European Office, Brussels.

In addition, Beckerman will be participating in panels discussing the "making available" concept and the role privacy rights should play in proceedings to obtain disclosure of subscriber identities from ISP's for p2p cases.

CLE credit is available for the conference.

A full description of the March 28th panels in which Beckerman will be participating is as follows:

5:05 – 6:30
The Role, Effectiveness and Issues in Infringement Actions against Individual P2P Downloaders; Recent Legislative Initiatives Aimed at Downloaders

Moderator:
Prof. Hugh C. Hansen, Fordham University School of Law

1. What is the effect in the U.S. of the “making available” right? Comparative approaches in Asia, interpreting the making available right, and also the intersection with secondary liability.

Speaker:
Michael Scheslinger, Greenberg Traurig LLP, Wash. D.C.

Panelists:
Ray Beckerman, Vandenberg & Feliu LLP
Prof. Brian Fitzgerald, Queensland University of Technology Law School, Brisbane
Prof. Jane Ginsburg, Columbia Law School
Prof. Mary Wong, Franklin Pierce Law Center

2. Should new limits be placed upon statutory damages? Did the supporters of P2P software and the individual defendants miscalculate the reaction of juries? A review of case law, e. g., Capitol Records v. Thomas, (D. Minn. 2007).

Speaker:
Kenneth Doroshow, Senior Vice President of Litigation and Legal Affairs, Recording Industry of America, Wash. D.C.


Panelists:
Ray Beckerman, Vandenberg & Feliu LLP
Prof. Peter Black, Queensland University of Technology, Brisbane
Prof. Pamela Samuelson, University of California, Berkeley
Ted Shapiro, Deputy Managing Director, VP & General Counsel – Europe, MPA, European Office, Brussels


3. What role should privacy play in learning the identities of downloaders? A look at recent case law in the U.S. and EU (e.g. Promusicae in ECJ)

Speaker:
Dr. Volker Kitz, Max Planck Institute for Intellectual Property, Munich / HOECKER attorneys, Cologne
Private Peers – What Role Should Privacy Law Play in Learning the Identities of P2P Users? The European Case

The “Data Retention Directive” obliges access providers throughout Europe to store dynamic IP addresses. The ECJ, however, decided that privacy law might prevent right holders from obtaining this data. Where is the right balance between IP enforcement and privacy?

Panelists:
Ray Beckerman, Vandenberg & Feliu LLP
Fabienne Brison, Howrey LLP, Free University of Brussels
Eddan Katz, International Affairs Director, Electronic Frontier Foundation, San Francisco
Barbara Norcross-Amilhat, Principal Administrator, Copyright and Knowledge-
Based Economy, DG Internal Market and Services, European Commission, Brussels
Richard Pfohl, General Counsel, Canadian Recording Industry Ass’n, Toronto
Ted Shapiro, Deputy Managing Director, VP & General Counsel – Europe, MPA, European Office, Brussels
A full description of the entire 2-day program is available online in both HTML format and PDF format.

Commentary & discussion:

p2pnet.net




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






RIAA opposes dismissal motion in Priority v. Vines, asks Court not to follow Atlantic v. Brennan or Interscope v. Rodriguez

In Priority v. Vines, in Indiana, the RIAA has filed papers opposing the defendant's motion to dismiss the complaint for failure to state a claim.

In its opposition papers, the RIAA argues that the Court should not follow Interscope v. Rodriguez or Atlantic v. Brennan, both of which held that the RIAA's complaint failed to state a claim.

RIAA's opposition brief*

* Document published online at Internet Law & Regulation



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






Tuesday, March 25, 2008

Tanya Andersen asks court to fix her attorneys fees at $300k, RIAA says she should be limited to $30k

In Atlantic v. Andersen, where the Magistrate Judge and the District Court Judge have ruled that Tanya Andersen is entitled to her attorneys fees, after 3 years of defending herself from the RIAA, the parties have now filed their papers staking out their positions on how much the attorneys fees should be.

Ms. Andersen claims she should be awarded approximately $300,000.

The RIAA claims her fees should be limited to $30,000.

Declaration of Lory Lybeck*
Defendant's brief*
Plaintiffs' expert witness's declaration*
Plaintiffs' opposition brief*
Lory Lybeck reply declaration*
Tanya Andersen reply declaration*
Defendant's reply brief*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
Ars Technica



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






p2pnet follows up on survey of states in which MediaSentry is not licensed

p2pnet.net is staying on top of the MediaSentry licensing story:

MediaSentry: have you checked your state?

p2pnet news | RIAA News:- Is Warner Music, EMI, Vivendi Universal and Sony BMG ‘investigator’ MediaSentry operating illegally in your state?” - p2pnet asked by way of a follow-up to MediaSentry: RIAA can of worms.

The Massachusetts State police have banned the company, it’s been accused of operating without a licence in Oregon, Florida, Texas and New York, and similar charges have been levelled at it in Michigan, we said in Is RIAA’s MediaSentry illegal in YOUR state?
Complete article




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






Monday, March 24, 2008

Petition for certiorari filed in Virgin v. Thompson on attorneys fees issue

In Virgin v. Thompson, the defendant has filed a petition for certiorari from the Fifth Circuit's denial of his request for attorneys fees.

Petition for certiorari*

* Document published online at Internet Law & Regulation


Commentary & discussion:

p2pnet.net
Ars Technica
Wired.com
Slashdot



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