Tuesday, June 30, 2009

RIAA wins case against Usenet.com based on discovery sanctions & summary judgment

In Arista Records v. Usenet.com, Inc., both of the RIAA's motions -- for discovery sanctions and for summary judgment -- have been granted, and the matter referred to the Magistrate Judge for determination of damages and an appropriate injunction.

Decision granting plaintiffs' motions
Order of reference to Magistrate Judge

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Court denies Tenenbaum's motion to compel interrogatory answers

In SONY BMG Music Entertainment v. Tenenbaum, the Court has denied defendant's motion to compel interrogatory answers, but ordered plaintiffs to produce certain sales information. The court's order is as follows:

Judge Nancy Gertner: Electronic ORDER entered granting in part and denying in part [852] Motion to Compel. "The Defendant's Motion to Compel [852] is GRANTED in part and DENIED in part. As a general matter, the Defendant's discovery requests are untimely under Fed.R.Civ.P. 33(b)(2). Counsel filed his appearance in this case on September 22, 2008, when discovery was already underway. Yet he did not file his First Set of Interrogatories until May 8, 2009, more than seven months later, when the Court had already ordered that discovery would close on May 30, 2009. See February 23, 2009 Order at 3 (document # 759). Rule 33(b)(2) provides that a party shall have 30 days from the date of service to respond to interrogatories, unless that period is altered by stipulation or court order. As a result, in order to be considered timely, such requests must be served with enough time for responses to be made before the discovery deadline. See Thomas v. Pacificorp, 324 F.3d 1176, 1179 (10th Cir. 2003); Ginett v. Federal Express Corp., 166 F.3d 1213 (6th Cir. 1998) (unpublished); Whitman v. Proconex, Inc., 2009 WL 113740, at *4 (E.D. Pa. 2009); Williams v. Little Rock Mun. Water Works, 155 F.R.D. 188, 189 (E.D. Ark. 1993). Defendant's counsel protests that the case did not crystallize until early May and that his team's energies were consumed by the abuse of process counterclaims that the Court has now dismissed, the constitutional challenge that the Court has deferred, and the webcast dispute. Lawyers, however, constantly face strategic choices about how to expend limited time and resources to advance their client's case. Discovery is obviously a central tool in defending against a civil suit; it is hardly an afterthought. Moreover, many of the issues raised in the interrogatories -- the ownership of the copyrighted works and factors relating to damages -- have been at the core of this case from its inception. Having delayed seeking this discovery until the deadline was weeks away, and having failed to request a timely extension from the Court, Tenenbaum has forfeited his right to compel the Plaintiff to answer any interrogatories unrelated to the fair use issue. However, because the Court has held discovery open on fair use, discovery requests on this subject served prior to June 22, 2009, the deadline set by the Court, are treated as timely. See Revised Scheduling Order at 5 (document # 850). Yet even here the Defendant's late-breaking effort to add the fair use defense, and the imminent trial date reaffirmed today by the parties, necessarily limits the breadth of the available discovery. See Fed.R.Civ.P. 26(b)(2)(C). Thus, to the extent that Interrogatories 2, 3, and 8 seek information related to the fair use analysis under 17 U.S.C. 107(4) (requiring consideration of "the effect of the use upon the potential market for or value of the copyrighted work"), the Court will permit some investigation. By July 10, 2009, the Plaintiffs shall provide the Defendant with yearly estimates, beginning in 1999, of the revenues generated by their copyrights in the specific songs for which they intend to prove infringement at trial. They should separate physical and digital music sales and should provide Defendant with a description of the methodology used to arrive at these figures. The Court will reconsider the need for discovery on any issues relating to actual damages if and when the Defendant's constitutional challenge becomes ripe -- i.e., should the jury award damages against him." (Gaudet, Jennifer)


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Proposed expert testimony of John Perry Barlow excluded in SONY v Tenenbaum

The plaintiffs' motion to exclude the proposed expert testimony of former Grateful Dead lyricist John Perry Barlow has been granted, in SONY BMG Music Entertainment v. Tenenbaum. The court's order is as follows:

Judge Nancy Gertner: Electronic ORDER entered granting [855] Motion to Strike. "The Plaintiffs' Motion to Exclude Defendant's Expert John Perry Barlow [855] is GRANTED. The Defendant has indicated that no supplemental Expert Report will be forthcoming, therefore the Court considers the Amended Declaration presently before it (document # 855-2). This report indicates that Mr. Barlow proposes to testify on two main subjects relating to the "fairness of peer-to-peer file sharing in the context of the recording industry": (1) the impact of file sharing on the music industry's business model; and (2) how peer-to-peer technology furthers a fundamental human need to "share art." Id. at 2. Philosophical pronouncements like those in the latter category are not within the scope of expert testimony and the Court cannot give them the imprimatur of "expertise" at trial. Counsel for the Defendant analogized Barlow to the truck driver who offers expert testimony in an accident case on such things as the impact of a load shifting while driving. The analogy is misplaced: If Barlow were to testify about the creative process in which he has been engaged, that would be a matter of expertise drawn from experience. But he seeks to testify about market conditions, on the one hand, and philosophy and policy on the other. The truck driver who is an expert about trucking would not be permitted to testify, for example, about either existentialism or GM's bankruptcy. At most, the policy-judgments that Barlow intends to present may be better suited to testimony before Congress than testimony before a jury. If appropriate anywhere in the courtroom -- a question which the Court reserves -- these considerations belong in counsel's closing argument. With respect to the concrete impact of file sharing on the music industry, Barlow has not identified any data or publication that will support his views, nor does he describe in any depth the conclusions that he would draw from his "personal experiences in the music industry." Id. As a result, he has not provided the Plaintiffs with any basis on which they might examine him. Most notably, Barlow's four-page report fails to include "a complete statement of all opinions the witness will express and the basis and reasons for them," and "the data or other information considered by the witness in forming them." Fed.R.Civ.P. 26(a)(2)(B). It is not enough for Barlow to state that he will rely on his personal experience to testify broadly about a number of topics related to file sharing; an expert must actually disclose the testimony he intends to offer at trial, as completely as possible, and the specific foundation for his opinions. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 641 (7th Cir. 2008). The Rules of Civil Procedure require Barlow to offer those opinions in a manner that enables the opposing party to prepare adequately for trial. The Amended Declaration does not come close to that threshold, and therefore he is excluded as an expert pursuant to Fed.R.Civ.P. 37(c)(1)." (Gaudet, Jennifer)




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Monday, June 29, 2009

In March 2006 RIAA told Kansas City Business Journal it had sued 18,000

Hat tip to Jon Newton of p2pnet.net for pointing out that the RIAA told the Kansas City Business Journal in early March, 2006, that it had sued 18,000 people. For the next 2 1/2 years or so it was commencing suits at a rate of approximately 10,000 per year.

Commentary & discussion:

Ars Technica





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Defendant seeks leave to call ethnomusicologist Dr. Wayne Marshall as expert witness in SONY v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the defendant has sought leave to file an expert witness report of Dr. Wayne Marshall, an ethnomusicologist who is presently a Mellon Fellow at MIT.

Expert Report of Dr. Wayne Marshall
Curriculum vitae
Motion for Leave to file Wayne Marshall report

Commentary & discussion:

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Supreme Court denies film industry's petition for certiorari in Cartoon Networks v. CSC Holdings

According to this report in THREsq, The United States Supreme Court has denied the film industry's petition for certiorari in Cartoon Networks v. CSC Holdings, leaving standing the decision of the US Court of Appeals for the Second Circuit that the cable company had not infringed plaintiffs' copyrights by offering its customers online video storage for replay on recall.



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Digital Music News questions Oppenheim declaration

In this report in Digital Music News, Matthew Oppenheim's recent declaration that there were only 18,000 people "contacted" by the RIAA is questioned.





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Sunday, June 28, 2009

Oppenheim claims RIAA has pursued total of 18,000 defendants, of whom 4,000 settled

According to court papers filed by the RIAA in Andersen v. Atlantic Recording, in opposition to plaintiff's motion for class action certification, Matthew Oppenheim has claimed that in the entire course of the RIAA's campaign, they have "contacted" a total of 18,000 people, of whom 4,000 have settled.

Oppenheim declaration
Coggon declaration
Plaintiffs' memorandum of law in opposition to class certification

[Ed. note. I'm pretty sure I saw an RIAA press release about 4 years ago which said that the number sued as of that time was around 25,000. -R.B.]



Commentary & discussion:

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Ars Technica




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Saturday, June 27, 2009

Defendant moves for summary judgment in Lava Records v. Amurao II

In Lava Records v. Amurao II, the RIAA's case against Rolando Amurao's daughter Audrey, the defendant has moved for summary judgment dismissing the complaint, on the basis of the statute of limitations, the insufficiency of the plaintiffs' moving papers, the legal insufficiency of the RIAA's case for "making available", and unconstitutionality of the RIAA's "statutory damages" theory.

Defendant's memorandum of law in support of defendant's motion for summary judgment

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RIAA files Appellees' Brief in 2d Circuit in Arista v. Does 1-16

In its case targeting students at the State University of New York at Albany, Arista Records v. Does 1-16, the RIAA has filed its Appellees' Brief in the US Court of Appeals for the Second Circuit.

The "John Doe" proceeding in the court below has been stayed pending the determination of the appeal.

Appellees' Brief



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Friday, June 26, 2009

Practice tip: copyright infringement judgments & bankruptcy discharge

For those practitioners advising clients as to the dischargeability of judgments for wilful copyright infringement in bankruptcy, The Electronic Frontier Foundation has on its site an excellent memo, "Dischargeability of copyright judgments in personal bankruptcy" (pdf), by Fred Von Lohmann, which presents a worthy entree into the subject.




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Plaintiffs argue they should not have to answer defendant's interrogatories in SONY BMG Music v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has asked the Court to deny defendant's motion to compel plaintiffs to respond to the outstanding interrogatories.

Opposition to defendant's motion to compel answers to interrogatories

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RIAA seeks to exclude John Perry Barlow as expert in SONY BMG Music Entertainment v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has sought to bar one of defendant's expert witnesses, former Grateful Dead lyricist John Perry Barlow, from testifying.

Motion to exclude expert witness Barlow

Commentary & discussion:

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