Wednesday, March 31, 2010

Achte/Neunte v Does 1-2094 : suit filed for infringement of movie

According to a a report in THR, Esq. a new wave of tens of thousands of lawsuits has been commenced by the alleged owners of copyrights in films made by non-major studios. The complaint in Achte/Neunte v. Does 1-2094 was filed on March 18, 2010, in the District of Columbia. It appears that the new cases are employing the very same tactics used by the RIAA in illegally joining large numbers of John Does in the same case, and moving ex parte (without notice) for discovery. It appears that the new cases are based on BitTorrent, rather than Gnutella, or FastTrack, protocols of file sharing.

The ex parte discovery motion was granted on March 22nd.

The Court's order provides that a motion to quash must be made within 30 days of service of the subpoena on the ISP, but makes no provision for how, when, or even whether the ISP is to give notice to its customers. I.e., under the order, the requested information can be divulged to plaintiff before the customer even learns that there is a subpoena.

According to the declaration submitted in support of the ex parte motion, the plaintiff's evidence is "proprietary".

Complaint
Order granting ex parte motion for discovery
Declaration in support of motion

[ Ed. note. My first reaction when I heard of this was that it was an April Fool's joke, since the RIAA's strategy of suing its customers has been a colossal failure, and since a small film maker would be even less likely to be that stupid. But -- unless someone is willing to file false documents in a federal court as part of a prank -- this is real. Real madness. But not an April Fool's joke, apparently. I've never heard of the plaintiff, or of plaintiff's lawyers, or of the allegedly infringed movie, but then again I don't get out much. I'm not much of a businessman, but I was wondering if this is some perverted way of getting publicity for movies no one has heard of. R.B.]

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Friday, March 26, 2010

Court assesses $2249 in attorneys fees against Prof Nesson & Joel Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the Court has assessed $2249 in attorneys fees against the defendant and his attorney Professor Charles Nesson, in connection with plaintiffs' motion to compel production.

Order assessing attorneys fees



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Tuesday, March 23, 2010

Viacom v You Tube summary judgment motions unsealed

The motions by Viacom and YouTube for summary judgment, in Viacom v. YouTube, have been unsealed.

The arguments of the parties are summarized in their memoranda of law.

Viacom memorandum of law
YouTube memorandum of law

[Ed. note The Viacom memorandum of law, IMHO, is ludicrous.... not surprisingly since Viacom is represented by Jenner & Block. Their arguments if credited would mean that the Digital Millennium Copyright Act does not exist, and that every business which has relied upon it since inception is toast. Which would put the United States on a par with Zambia in world commerce and would put tens of millions of people -- the very people who are making the US even remotely competitive today -- out of work. If I were the Judge I would order plaintiff to show cause why its lawyers should not be sanctioned under Fed. R. Civ. P. 11 for making such a motion. -R.B.]

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Tuesday, March 09, 2010

Partial summary judgment motions made in Viacom v YouTube, documents under seal

In Viacom v. YouTube , the parties are making partial summary judgment motions on the applicability of the DMCA to YouTube.

The Court has initially permitted the parties to file their documents under seal.

[Ed. note. I find it disturbing that the papers are permitted to be filed under seal. Whatever happened to "courts of record"? There is too much of this going on, and it always seems to be in RIAA/MPAA cases. It used to be virtually impossible to get things filed under seal; now it seems to be a routine matter. Now that we finally have the technology to know and share what is really going on in our courts, the parties and/or the courts seem bound and determined to take that away from us. I sincerely hope that the media who have money for such things protest. -R.B.]




Commentary & discussion:

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Monday, March 08, 2010

Court rules Ms. Lindor may not move for attorneys fees

In UMG Recordings v. Lindor, in response to Ms. Lindor's request for (a) an order clarifying that the Court precludes her from making a motion for attorneys fees, or in the alternative (b) a pre-motion conference in connection with a planned motion for an order:

-determining the statute of limitations to have expired;
-determining her to be the prevailing party within the meaning of 17 USC 505; and
-awarding her costs, including reasonable attorneys fees,

the Court has issued an order which "restates that defendant's request for attorney's fees and costs is denied"

March 8, 2010 order denying attorneys fees
February 25, 2010, letter of Ray Beckerman to District Judge Hon. David G. Trager



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Friday, March 05, 2010

Capitol v Thomas Round 3 scheduled for October

In Capitol Records v. Thomas-Rasset, the trial has been scheduled for October 4th.

This will be the third trial in the matter, the first verdict having been overturned due to an incorrect jury instruction, the second having been overturned due to the unreasonableness of the size of the award. This trial will relate only to the measure of damages.

Notice of Trial Date



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Tenenbaum & his attorney ordered to pay costs of RIAA's motion to compel

In SONY BMG Music Entertainment v. Tenenbaum, Judge Gertner has granted the RIAA's motion for costs and fees incurred in connection with its motion to compel production regarding dissemination of mp3 song files by the defendant's counsel during the lawsuit:

Judge Nancy Gertner: Electronic ORDER entered granting [851] Motion for Costs and Fees Under Rule 37(a)(5). Plaintiffs request that the Court order the defense to pay the reasonable expenses they incurred in filing a motion to compel (document #842) that the Court granted on June 16, 2009. Federal Rule of Civil Procedure 37(a)(5)(A) provides that if a court grants a motion to compel a response to a discovery request, "the court must... require the party... whose conduct necessitated the motion, the... attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." An award of costs and fees to the prevailing party is mandatory unless the court finds that (1) "the movant filed the motion before attempting in good faith to obtain the... discovery without court action"; (2) "the opposing party's nondisclosure... was substantially justified"; or (3) "other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(A); see also Midland-Ross Corp. v. Ztel, Inc., 113 F.R.D. 664, 666 (D. Mass. 1987) (quoting M&D Builders, Inc. v. Peck, 109 F.R.D. 410, 411-12 (D. Mass. 1986)). The defendant has not filed an opposition to plaintiffs' motion for costs and fees, and the Court concludes that the plaintiffs' motion should be granted. As indicated in their motion to compel, the plaintiffs attempted to resolve their discovery dispute with the defendant, but the defense refused to disclose the requested information. The defense also has made little effort to show that its nondisclosure was "substantially justified." Defense counsel's terse response to plaintiffs' motion to compel merely stated that, in his personal opinion, the plaintiffs' requests were not relevant to this litigation. As indicated in this Court's June 16, 2009, order, plaintiffs' request for information relating to the defense's unauthorized distribution of the very copyrighted works on which plaintiffs' claims were based was clearly relevant to such issues as the willfulness of the defendant's conduct and the amount of damages to be awarded by the jury. Finally, the Court concludes that there are no extenuating circumstances in this case that would make the award of attorneys' fees and other costs unjust. Accordingly, the Court will hold both the defendant, Joel Tenenbaum, and his attorney, Charles Nesson, jointly and severally liable for the reasonable expenses that plaintiffs incurred in filing their motion to compel. See 8A Charles Alan Wright, Arthur Miller & Richard Marcus Federal Practice and Procedure § 2288, at 662 (2d ed. 1994) (noting that an award of reasonable expenses under Rule 37(a) may be made against both the losing party and his attorney and citing cases in which an attorney has been ordered to pay an award). The plaintiffs are ordered to file an affidavit containing an itemized statement of the expenses they incurred in filing the motion to compel by March 8, 2010. (Hourihan, Lisa)


Commentary & discussion:

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Thursday, March 04, 2010

RIAA writes letter opposing Lindor's request for pre-motion conference for attorneys fees motion

In UMG Recordings v. Lindor, the RIAA has filed a letter opposing defendant's request for (a) a 'memorandum endorsed' order precluding an attorneys fee motion under the Copyright Act or , in the alternative (b) a pre-motion conference for an attorneys fees motion.

March 4, 2010, letter of Eve G. Burton to Hon. David G. Trager


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