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NewYorkCountryLawyer writes "You have to love a case where Warner Brothers, copyright maximalist extraordinaire, gets sued for 'piracy,' in this case for using a knock-off Louis Vuitton bag in a recent movie. This lawsuit has been described as 'awkward' for Warner; I have to agree with that characterization. Louis Vuitton's 22-page complaint (PDF) alleges that Warner Bros. had knowledge that the bag was a knock-off, but went ahead and used it anyway. Apparently Warner Bros. takes IP rights seriously only when its own IP rights are involved."

FunPika writes with this excerpt from Wired: "A federal appeals court on Friday reinstated a whopping $675,000 file sharing verdict that a jury levied against a Boston college student for making 30 tracks of music available on a peer-to-peer network. The decision by the 1st U.S. Circuit Court of Appeals reverses a federal judge who slashed the award as 'unconstitutionally excessive.' U.S. District Judge Nancy Gertner of Boston reduced the verdict to $67,500, or $2,250 for each of the 30 tracks defendant Joel Tenenbaum unlawfully downloaded and shared on Kazaa, a popular file sharing peer-to-peer service. The Recording Industry Association of America and Tenenbaum both appealed in what has been the nation's second RIAA file sharing case to ever reach a jury. The Obama administration argued in support of the original award, and said the judge went too far when addressing the constitutionality of the Copyright Act's damages provisions. The act allows damages of up to $150,000 a track." Update: 09/17 21:32 GMT by S : As it turns out, the article's explanation of the decision is a bit lacking; read on for NewYorkCountryLawyer's more accurate explanation. NYCL writes, "The 1st Circuit Court of Appeals has declined to reach the Due Process issue in SONY BMG Music Entertainment v. Tenenbaum. In a 65-page decision (PDF), which rejected all of Tenebaum's counsel's other arguments, and which otherwise praised Judge Gertner's handling of the trial, the First Circuit felt that under the doctrines of judicial restraint and constitutional avoidance, it was premature to decide the constitutional issue without first disposing of the defendant's motion on common law, remittitur grounds. The Court gave several examples of scenarios which might have occurred, had the lower court decided the remittitur question, which would have avoided embarking down the constitutional path."

FunPika writes with this excerpt from Wired: "A federal appeals court on Friday reinstated a whopping $675,000 file sharing verdict that a jury levied against a Boston college student for making 30 tracks of music available on a peer-to-peer network. The decision by the 1st U.S. Circuit Court of Appeals reverses a federal judge who slashed the award as 'unconstitutionally excessive.' U.S. District Judge Nancy Gertner of Boston reduced the verdict to $67,500, or $2,250 for each of the 30 tracks defendant Joel Tenenbaum unlawfully downloaded and shared on Kazaa, a popular file sharing peer-to-peer service. The Recording Industry Association of America and Tenenbaum both appealed in what has been the nation's second RIAA file sharing case to ever reach a jury. The Obama administration argued in support of the original award, and said the judge went too far when addressing the constitutionality of the Copyright Act's damages provisions. The act allows damages of up to $150,000 a track." Update: 09/17 21:32 GMT by S : As it turns out, the article's explanation of the decision is a bit lacking; read on for NewYorkCountryLawyer's more accurate explanation. NYCL writes, "The 1st Circuit Court of Appeals has declined to reach the Due Process issue in SONY BMG Music Entertainment v. Tenenbaum. In a 65-page decision (PDF), which rejected all of Tenebaum's counsel's other arguments, and which otherwise praised Judge Gertner's handling of the trial, the First Circuit felt that under the doctrines of judicial restraint and constitutional avoidance, it was premature to decide the constitutional issue without first disposing of the defendant's motion on common law, remittitur grounds. The Court gave several examples of scenarios which might have occurred, had the lower court decided the remittitur question, which would have avoided embarking down the constitutional path."

NewYorkCountryLawyer writes "Based on a new analysis of old skulls, it now appears that modern humans may have interbred with some earlier hominid species, suggesting that human evolution took a more complex path than previously thought. The study opines that modern humans lived side by side with the older species. Paleontologists disagree over the meaning of the findings, or whether they have any substantial significance at all."

NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Court has reduced the jury's award from $675,000, or $22,500 per infringed work, to $67,500, or $2,250 per infringed work, on due process grounds, holding that the jury's award was unconstitutionally excessive. In a 64-page decision (PDF), District Judge Nancy Gertner ruled that the Gore, Campbell, and Williams line of cases was applicable to determining the constitutionality of statutory damages awards, that statutory damages must bear a reasonable relationship to the actual damages, and that the usual statutory damages award in even more egregious commercial cases is from 2 to 6 times the actual damages. However, after concluding that the actual damages in this case were ~ $1 per infringed work, she entered a judgment for 2,250 times that amount. Go figure." That $2,250 per infringed work figure should look familiar from Jammie Thomas-Rassett's reduced damages judgment — $54,000 for 24 songs.

NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Court has reduced the jury's award from $675,000, or $22,500 per infringed work, to $67,500, or $2,250 per infringed work, on due process grounds, holding that the jury's award was unconstitutionally excessive. In a 64-page decision (PDF), District Judge Nancy Gertner ruled that the Gore, Campbell, and Williams line of cases was applicable to determining the constitutionality of statutory damages awards, that statutory damages must bear a reasonable relationship to the actual damages, and that the usual statutory damages award in even more egregious commercial cases is from 2 to 6 times the actual damages. However, after concluding that the actual damages in this case were ~ $1 per infringed work, she entered a judgment for 2,250 times that amount. Go figure." That $2,250 per infringed work figure should look familiar from Jammie Thomas-Rassett's reduced damages judgment — $54,000 for 24 songs.

NewYorkCountryLawyer writes "There has been another odd development in the Jammie Thomas-Rassett case. You may recall that after the judge reduced the RIAA's verdict from $1.92 million to $54,000 on the grounds that $54,000 was the maximum amount a jury could reasonably award, the RIAA opted for a third trial instead of allowing judgment to be entered. Its reasoning in making that call has never been clear, since there seemed little point in spending hundreds of thousands of dollars on a trial which could produce no more than a judgment for $54,000 or less. Apparently the court thinks taxpayers' money could be better spent, and has appointed a 'Special Master' to bring about 'meaningful settlement discussions,' with the Master's $400-per-hour fee to be paid by the RIAA. One commentator suggests the RIAA should at this juncture just say, 'Thanks Jammie, we've had all we can get out of you and caused you enough grief — pay us $1 and we'll forget about it.' Actually doing that would be a lot less costly and more reasonable that what they appear to have in mind."

NewYorkCountryLawyer writes "District Court Judge Kimba Wood has granted some of the RIAA's key summary judgment motions in Arista Records v. Lime Group. In her 59-page decision (PDF), she found Lime Group itself, as well as its CEO and a separate company, liable for intentionally inducing Limewire users to infringe plaintiffs' copyrights. The decision was not a final judgment, so it is not appealable. Additionally, it denied summary judgment on certain issues, and did not address any possible damages."

NewYorkCountryLawyer writes "District Court Judge Kimba Wood has granted some of the RIAA's key summary judgment motions in Arista Records v. Lime Group. In her 59-page decision (PDF), she found Lime Group itself, as well as its CEO and a separate company, liable for intentionally inducing Limewire users to infringe plaintiffs' copyrights. The decision was not a final judgment, so it is not appealable. Additionally, it denied summary judgment on certain issues, and did not address any possible damages."

NewYorkCountryLawyer writes "A 3-judge panel of the US Court of Appeals for the 5th Circuit has ruled that a Texas teenager was not entitled to invoke the innocent infringement defense in an RIAA file-sharing case where she had admittedly made unauthorized downloads of all of the 16 song files in question, and had not disputed that she had 'access' to the CD versions of the songs which bore copyright notices. The 11-page decision (PDF) handed down in Maverick Recording v. Harper seems to equate 'access' with the mere fact that CDs on sale in stores had copyright notices, and that she was free to go to such stores. In my opinion, however, that is not the type of access contemplated in the statute, as the reference to 'access' in the statute was intended to obviate the 'innocence' defense where the copy reproduced bore a copyright notice. The court also held that the 'making available' issue was irrelevant to the appeal, and that the constitutional argument as to excessiveness of damages had not been preserved for appeal."

NewYorkCountryLawyer writes "A 3-judge panel of the US Court of Appeals for the 5th Circuit has ruled that a Texas teenager was not entitled to invoke the innocent infringement defense in an RIAA file-sharing case where she had admittedly made unauthorized downloads of all of the 16 song files in question, and had not disputed that she had 'access' to the CD versions of the songs which bore copyright notices. The 11-page decision (PDF) handed down in Maverick Recording v. Harper seems to equate 'access' with the mere fact that CDs on sale in stores had copyright notices, and that she was free to go to such stores. In my opinion, however, that is not the type of access contemplated in the statute, as the reference to 'access' in the statute was intended to obviate the 'innocence' defense where the copy reproduced bore a copyright notice. The court also held that the 'making available' issue was irrelevant to the appeal, and that the constitutional argument as to excessiveness of damages had not been preserved for appeal."

NewYorkCountryLawyer writes "The final brief (PDF) filed by the defendant Joel Tenenbaum in SONY BMG Music Entertainment v. Tenenbaum seems to put the final nail in the coffin on the RIAA's argument that 'statutory damages' up to $150,000 can be awarded where the record company's lost profit is in the neighborhood of 35 cents. Not only do Tenenbaum's lawyers accurately describe the applicable caselaw and scholarship, something neither the RIAA nor the Department of Justice did in their briefs, but they point out to the Court that the US Court of Appeals for the First Circuit — the appeals court controlling this matter — has itself ruled that statutory damages awards are reviewable for due process considerations under the guidelines of State Farm v. Campbell and BMW v. Gore. The brief is consistent with the amicus curiae brief filed in the case last year by the Free Software Foundation."

NewYorkCountryLawyer writes "The final brief (PDF) filed by the defendant Joel Tenenbaum in SONY BMG Music Entertainment v. Tenenbaum seems to put the final nail in the coffin on the RIAA's argument that 'statutory damages' up to $150,000 can be awarded where the record company's lost profit is in the neighborhood of 35 cents. Not only do Tenenbaum's lawyers accurately describe the applicable caselaw and scholarship, something neither the RIAA nor the Department of Justice did in their briefs, but they point out to the Court that the US Court of Appeals for the First Circuit — the appeals court controlling this matter — has itself ruled that statutory damages awards are reviewable for due process considerations under the guidelines of State Farm v. Campbell and BMW v. Gore. The brief is consistent with the amicus curiae brief filed in the case last year by the Free Software Foundation."

NewYorkCountryLawyer writes "Not satisfied with the reduced $54,000 verdict which the Judge allowed it in Capitol Records v. Thomas-Rasset, representing approximately 6500 times the amount of their actual damages, the RIAA has decided to take its chances on a third trial, at which it could only win a verdict that is equal to, or less than, $54,000. Since a 3rd trial in and of itself makes no economic sense, and since the RIAA's lawyers inappropriately added 7 pages of legal argument to their 'notice', it can only be assumed that the reason they are opting for a 3rd trial is to hope that they can somehow bait the Judge into making an error that will help them on an appeal."

NewYorkCountryLawyer writes "The 5-year-old case of UMG Recordings v. Lindor (which we've discussed all those years) has come to a close in Brooklyn, without ever reaching the deposition and document production of MediaSentry. The District Judge denied the RIAA's motions for discovery sanctions but granted the RIAA's motion for voluntary dismissal without prejudice and without attorneys fees, adopting the report and recommendation of the Magistrate Judge."

NewYorkCountryLawyer writes "Despite having had some time to get their act together, Obama's Department of Justice has filed yet another brief defending the RIAA's outlandish statutory damages theory — that someone who downloaded an mp3 with a 99-cent retail value, causing a maximum possible damages of 35 cents, is liable for from $750 to $150,000 for each such file downloaded, in SONY BMG Music Entertainment v. Tenenbaum. The 25- page brief (PDF) continues the DOJ's practice of (a) ignoring the case law which holds that the Supreme Court's due process jurisprudence is applicable to statutory damages, (b) ignoring the law review articles to like effect, (c) ignoring the actual holding of the 1919 case they rely upon, (d) ignoring the fact that the RIAA failed to prove 'distribution' as defined by the Copyright Act, and (e) ignoring the actual wording and reasoning of the Supreme Court in its leading Gore and Campbell decisions. Jon Newton of p2pnet.net attributes the Justice Department's 'oversights' to the 'eye-popping number of people [in its employ] who worked for, and/or are directly connected with, Vivendi Universal, EMI, Warner Music and Sony Music's RIAA.'"

NewYorkCountryLawyer writes "Despite having had some time to get their act together, Obama's Department of Justice has filed yet another brief defending the RIAA's outlandish statutory damages theory — that someone who downloaded an mp3 with a 99-cent retail value, causing a maximum possible damages of 35 cents, is liable for from $750 to $150,000 for each such file downloaded, in SONY BMG Music Entertainment v. Tenenbaum. The 25- page brief (PDF) continues the DOJ's practice of (a) ignoring the case law which holds that the Supreme Court's due process jurisprudence is applicable to statutory damages, (b) ignoring the law review articles to like effect, (c) ignoring the actual holding of the 1919 case they rely upon, (d) ignoring the fact that the RIAA failed to prove 'distribution' as defined by the Copyright Act, and (e) ignoring the actual wording and reasoning of the Supreme Court in its leading Gore and Campbell decisions. Jon Newton of p2pnet.net attributes the Justice Department's 'oversights' to the 'eye-popping number of people [in its employ] who worked for, and/or are directly connected with, Vivendi Universal, EMI, Warner Music and Sony Music's RIAA.'"

NewYorkCountryLawyer writes "After Starr v. SONY BMG Music Entertainment was dismissed at the District Court level, the antitrust class action against the RIAA has been reinstated by the US Court of Appeals for the Second Circuit. In its 25-page opinion (PDF), the Appeals court held the following allegations sufficiently allege antitrust violations: 'First, defendants agreed to launch MusicNet and pressplay, both of which charged unreasonably high prices and contained similar DRMs. Second, none of the defendants dramatically reduced their prices for Internet Music (as compared to CDs), despite the fact that all defendants experienced dramatic cost reductions in producing Internet Music. Third, when defendants began to sell Internet Music through entities they did not own or control, they maintained the same unreasonably high prices and DRMs as MusicNet itself. Fourth, defendants used MFNs [most favored nation clauses] in their licenses that had the effect of guaranteeing that the licensor who signed the MFN received terms no less favorable than terms offered to other licensors. For example, both EMI and UMG used MFN clauses in their licensing agreements with MusicNet. Fifth, defendants used the MFNs to enforce a wholesale price floor of about 70 cents per song. Sixth, all defendants refuse to do business with eMusic, the #2 Internet Music retailer. Seventh, in or about May 2005, all defendants raised wholesale prices from about $0.65 per song to $0.70 per song. This price increase was enforced by MFNs.'"

NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the defendant has filed a motion for new trial, attacking, among other things, the constitutionality of the jury's $675,000 award as being violative of due process. In his 32-page brief (PDF), Tenenbaum argues that the award exceeded constitutional due process standards, both under the Court's 1919 decision in St. Louis Railway v. Williams, as well as under its more recent authorities State Farm v. Campbell and BMW v. Gore. Defendant also argues that the Court's application of fair use doctrine was incorrect, that statutory damages should not be imposed against music consumers, and that the Court erred in a key evidentiary ruling."

NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the defendant has filed a motion for new trial, attacking, among other things, the constitutionality of the jury's $675,000 award as being violative of due process. In his 32-page brief (PDF), Tenenbaum argues that the award exceeded constitutional due process standards, both under the Court's 1919 decision in St. Louis Railway v. Williams, as well as under its more recent authorities State Farm v. Campbell and BMW v. Gore. Defendant also argues that the Court's application of fair use doctrine was incorrect, that statutory damages should not be imposed against music consumers, and that the Court erred in a key evidentiary ruling."

NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Boston RIAA case in which the defendant, represented by Charles Nesson of Harvard Law School, admitted liability at his trial, the Court has entered judgment in favor of the RIAA for the monetary award of $625,000 fixed by the jury. However, the Court left open the questions of whether the amount is excessive, and whether attorneys fees and/or sanctions should be awarded, and has scheduled further briefing of those issues. The Court granted the RIAA much, but not all, of the injunctive relief it requested. In an unusual step, the Court issued a 38-page decision (PDF) explaining in some detail the Court's views of the Fair Use defense in the context of cases like this, and indicating that there are some factual scenarios — not applicable in this particular case — in which it might have concluded that the claims were barred by Fair Use. E.g. it declined to rule out the possibility that creation of mp3 files exclusively for space-shifting purposes from audio CDs a defendant had previously purchased might constitute fair use."

NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Boston RIAA case in which the defendant, represented by Charles Nesson of Harvard Law School, admitted liability at his trial, the Court has entered judgment in favor of the RIAA for the monetary award of $625,000 fixed by the jury. However, the Court left open the questions of whether the amount is excessive, and whether attorneys fees and/or sanctions should be awarded, and has scheduled further briefing of those issues. The Court granted the RIAA much, but not all, of the injunctive relief it requested. In an unusual step, the Court issued a 38-page decision (PDF) explaining in some detail the Court's views of the Fair Use defense in the context of cases like this, and indicating that there are some factual scenarios — not applicable in this particular case — in which it might have concluded that the claims were barred by Fair Use. E.g. it declined to rule out the possibility that creation of mp3 files exclusively for space-shifting purposes from audio CDs a defendant had previously purchased might constitute fair use."

NewYorkCountryLawyer writes "The RIAA's claim that personalized internet radio stations were 'interactive services' was flatly rejected 'as a matter of law' by the US Court of Appeals for the Second Circuit, in Arista Records v. Launch Media. In affirming the jury's verdict in favor of the defendant, Launch Media — acquired during the lawsuit by Yahoo! — the Court said it did not even need to concern itself with possible errors in the jury instructions, since the trial judge should have directed a verdict for defendant 'as a matter of law' on the question of whether the radio stations were 'interactive services.' At pages 23-42 of its 42-page opinion (PDF), the appeals court carefully analyzed how Launch Media's personalized internet radio stations worked, and noted that the users could neither obtain and play on demand a particular song, nor obtain the transmission of a particular program, thus rendering the RIAA's claim of 'interactivity' meritless."

NewYorkCountryLawyer writes "Just when you think this case couldn't get any stranger, it now appears that the defendant's 'legal team' in SONY BMG Music Entertainment v. Tenenbaum is passing the hat, taking up a collection. Only the reason for the collection isn't to defray costs and expenses of further defending the action, but to pay the RIAA the amount of the judgment so that their client won't have to declare bankruptcy. I would suggest there might have been a much better way of avoiding bankruptcy. It's called 'handling the case competently.'"

NewYorkCountryLawyer writes "The jury awarded the record company plaintiffs $675,000 in the Boston trial defended by Prof. Charles Nesson, SONY BMG Music Entertainment v. Tenenbaum. I was not surprised, since exactly none of the central issues ever even came up in this trial. The judge had instructed the jurors that Mr. Tenenbaum was liable, and that their only task was to come up with a verdict that was more than $22,500 and less than $4.5 million. According to the judge, her reason for doing so was that, when on the stand, the defendant was asked if he admitted liability, and he said 'yes.' The lawyers among you will know that that was a totally improper question, and that the Court should not have even allowed it, much less based her holding upon the answer to it."

NewYorkCountryLawyer writes "In what could be a turning point in the RIAA's litigation campaign, a Michigan judge has decided to appoint pro bono counsel to represent college student Brittany Kruger, who is being sued by the RIAA in SONY BMG Music Entertainment v. Kruger. As this article points out, 'if other judges follow suit, things will change dramatically.' That is because the RIAA's entire litigation campaign is based upon economic inequality of the litigants: almost none of those sued by the RIAA can afford legal representation, and the RIAA has a huge economic incentive to fight cases to the death, while the defendants have no economic incentive greater than the 'settlement' amount, which they often pay even when entirely innocent. If the courts follow the lead of District Judge Timothy P. Greeley [PDF], and appoint pro bono legal counsel, the RIAA will no longer be able to achieve the easy pickings default judgments and 'settlements' it's routinely obtained in the past."

NewYorkCountryLawyer writes "In what could be a turning point in the RIAA's litigation campaign, a Michigan judge has decided to appoint pro bono counsel to represent college student Brittany Kruger, who is being sued by the RIAA in SONY BMG Music Entertainment v. Kruger. As this article points out, 'if other judges follow suit, things will change dramatically.' That is because the RIAA's entire litigation campaign is based upon economic inequality of the litigants: almost none of those sued by the RIAA can afford legal representation, and the RIAA has a huge economic incentive to fight cases to the death, while the defendants have no economic incentive greater than the 'settlement' amount, which they often pay even when entirely innocent. If the courts follow the lead of District Judge Timothy P. Greeley [PDF], and appoint pro bono legal counsel, the RIAA will no longer be able to achieve the easy pickings default judgments and 'settlements' it's routinely obtained in the past."

NewYorkCountryLawyer writes "The RIAA's motion to keep secret the record companies' 1999-to-date revenues for the copyrighted song files at the heart of the case has been denied, in the Boston case scheduled for trial July 27th, SONY BMG Music Entertainment v. Tenenbaum. The Judge had previously ordered the plaintiff record companies to produce a summary of the 1999-to-date revenues for the recordings, broken down into physical and digital sales. On the day the summary was due to be produced, instead of producing it, they produced a 'protective order motion' asking the Judge to rule that the information would have to be kept secret. The Judge rejected that motion: 'the Court does not comprehend how disclosure would impair the Plaintiffs' competitive business prospects when three of the four biggest record labels in the world — Warner Bros. Records, Sony BMG Music Entertainment, and UMG Recording, Inc. — are participating jointly in this lawsuit and, presumably, would have joint access to this information.'"

NewYorkCountryLawyer writes "In what I can only describe as a shocker, the Judge in SONY BMG Music Entertainment v. Tenenbaum has, on her own, issued an order questioning whether the jury will be allowed to decide the 'fair use' issue at all, or whether the Judge herself should decide it. Judge Nancy Gertner's decision (PDF) notes that the courts have traditionally submitted the fair use defense to the jury, but questions whether that was appropriate, since the courts have referred to it as an 'equitable' — as opposed to a 'legal' — defense. This decision came from out of the blue, as neither party had raised this issue. IMHO the Judge is barking up the wrong tree. For one, all across the legal spectrum in the US, 'equitable' defenses to 'legal' claims are triable to a jury. Secondly, as the Judge herself notes, the courts have traditionally submitted the issue to the jury. It also seems a bit unfair to bring up a totally new issue like that and give the parties only 6 days to do their research and writing on the subject, at a time when they are feverishly preparing for a July 27th trial."

NewYorkCountryLawyer writes "In what I can only describe as a shocker, the Judge in SONY BMG Music Entertainment v. Tenenbaum has, on her own, issued an order questioning whether the jury will be allowed to decide the 'fair use' issue at all, or whether the Judge herself should decide it. Judge Nancy Gertner's decision (PDF) notes that the courts have traditionally submitted the fair use defense to the jury, but questions whether that was appropriate, since the courts have referred to it as an 'equitable' — as opposed to a 'legal' — defense. This decision came from out of the blue, as neither party had raised this issue. IMHO the Judge is barking up the wrong tree. For one, all across the legal spectrum in the US, 'equitable' defenses to 'legal' claims are triable to a jury. Secondly, as the Judge herself notes, the courts have traditionally submitted the issue to the jury. It also seems a bit unfair to bring up a totally new issue like that and give the parties only 6 days to do their research and writing on the subject, at a time when they are feverishly preparing for a July 27th trial."

NewYorkCountryLawyer writes "In Fairey v. Associated Press, the Associated Press said artist Shepard Fairey's painting had infringed its copyrights in a photo of then-President Elect Barack Obama. Fairey said no, it was a 'fair use'. Now, the freelance photographer who actually took the AP photo — Manuel Garcia — has sought permission to intervene in the case, saying that both the AP and Fairey are wrong. Garcia's motion (PDF) protests that he, not AP, is the owner of the copyright in the photograph, and that he never relinquished it to AP. And he argues that Fairey is not entitled to a fair use defense. According to an article in TechDirt, this intervention motion by Mr. Garcia represents a changed attitude on his part, and that his initial reaction to Mr. Fairey's painting was admiration, and a desire for an autographed litho. Maybe Mr. Fairey should have given him that autographed litho."

NewYorkCountryLawyer writes "In Fairey v. Associated Press, the Associated Press said artist Shepard Fairey's painting had infringed its copyrights in a photo of then-President Elect Barack Obama. Fairey said no, it was a 'fair use'. Now, the freelance photographer who actually took the AP photo — Manuel Garcia — has sought permission to intervene in the case, saying that both the AP and Fairey are wrong. Garcia's motion (PDF) protests that he, not AP, is the owner of the copyright in the photograph, and that he never relinquished it to AP. And he argues that Fairey is not entitled to a fair use defense. According to an article in TechDirt, this intervention motion by Mr. Garcia represents a changed attitude on his part, and that his initial reaction to Mr. Fairey's painting was admiration, and a desire for an autographed litho. Maybe Mr. Fairey should have given him that autographed litho."

NewYorkCountryLawyer writes "In the Boston, Massachusetts case SONY BMG Music Entertainment v. Tenenbaum, the Court had ordered the RIAA to produce certain revenue information, which would be relevant to a determination of the 'fair use' defense. The RIAA has now moved for a protective order to keep the information 'confidential.' In the opinion of the undersigned, the fact that the motion is made jointly by four competitors shows that any claim suggesting the information is valuable or 'proprietary' would be unfounded, and the sole purpose for making the motion is to keep the information out of the hands of lawyers for other defendants, thus increasing the defense costs in other cases."

NewYorkCountryLawyer writes "Professor Charles Nesson, the Harvard law professor serving pro bono as counsel to the defendant in SONY BMG Music Entertainment v. Tenenbaum, has been ordered to show cause why sanctions should not be issued against him for violating the Court's orders prohibiting reproduction of the court proceedings. The order to show cause was in furtherance of the RIAA's motion for sanctions and protective order, which we discussed here yesterday. The Judge indicated that she was 'deeply concerned' about Prof. Nesson's apparent 'blatant disregard' of her order."

NewYorkCountryLawyer writes "Jammie Thomas-Rasset has made a motion for a new trial, seeking to vacate the $1.92 million judgment entered against her for infringement of 24 MP3 files, in Capitol Records v. Thomas-Rasset. Her attorneys' brief (PDF) argues, among other things, that the 'monstrous' sized verdict violates the Due Process Clause, consistent with 100 years of SCOTUS jurisprudence, since it is grossly disproportionate to any actual damages sustained. It further argues that, since the RIAA elected to offer no evidence of actual damages, either as an alternative to statutory damages, or to buttress the fairness of a statutory damages award, the verdict, if it is to be reduced, must be reduced to zero."

NewYorkCountryLawyer writes "Jammie Thomas-Rasset has made a motion for a new trial, seeking to vacate the $1.92 million judgment entered against her for infringement of 24 MP3 files, in Capitol Records v. Thomas-Rasset. Her attorneys' brief (PDF) argues, among other things, that the 'monstrous' sized verdict violates the Due Process Clause, consistent with 100 years of SCOTUS jurisprudence, since it is grossly disproportionate to any actual damages sustained. It further argues that, since the RIAA elected to offer no evidence of actual damages, either as an alternative to statutory damages, or to buttress the fairness of a statutory damages award, the verdict, if it is to be reduced, must be reduced to zero."

NewYorkCountryLawyer writes "One thing you don't see too much of in RIAA litigation is a defendant moving for summary judgment, but that is what just occurred in federal court in Westchester, in Lava Records v. Amurao II. The RIAA had brought suit against Rolando Amurao, a middle aged man who knew nothing about file sharing. After haranguing him for 2 years, they dropped the case and sued his daughter, Audrey, who had used LimeWire years ago. When the RIAA moved for summary judgment against Audrey, however, she surprised them with a summary judgment motion of her own, calling for dismissal of the complaint on the grounds that the statute of limitations had run out on the RIAA's claims. The brief filed by her attorney (PDF) also points out some of the other infirmities in the RIAA's case, such as the inadmissibility of its evidence, the legal nonexistence of a claim for 'making available,' and the unconstitutionality of its damages theory. According to sources, the RIAA is unhappy about Audrey's motion, and is preparing a letter to send the Judge asking the Judge not to allow her to make it. Meanwhile, Audrey's father's case, Lava Records v. Rolando Amurao, is on appeal in the US Court of Appeals for the 2d Circuit over the issue of whether the RIAA should have to reimburse Mr. Amurao for his attorneys fees. Although the appeal was fully briefed and scheduled for argument May 19th, the RIAA has been asking for postponements of the argument."

NewYorkCountryLawyer writes "One thing you don't see too much of in RIAA litigation is a defendant moving for summary judgment, but that is what just occurred in federal court in Westchester, in Lava Records v. Amurao II. The RIAA had brought suit against Rolando Amurao, a middle aged man who knew nothing about file sharing. After haranguing him for 2 years, they dropped the case and sued his daughter, Audrey, who had used LimeWire years ago. When the RIAA moved for summary judgment against Audrey, however, she surprised them with a summary judgment motion of her own, calling for dismissal of the complaint on the grounds that the statute of limitations had run out on the RIAA's claims. The brief filed by her attorney (PDF) also points out some of the other infirmities in the RIAA's case, such as the inadmissibility of its evidence, the legal nonexistence of a claim for 'making available,' and the unconstitutionality of its damages theory. According to sources, the RIAA is unhappy about Audrey's motion, and is preparing a letter to send the Judge asking the Judge not to allow her to make it. Meanwhile, Audrey's father's case, Lava Records v. Rolando Amurao, is on appeal in the US Court of Appeals for the 2d Circuit over the issue of whether the RIAA should have to reimburse Mr. Amurao for his attorneys fees. Although the appeal was fully briefed and scheduled for argument May 19th, the RIAA has been asking for postponements of the argument."

NewYorkCountryLawyer writes "One thing you don't see too much of in RIAA litigation is a defendant moving for summary judgment, but that is what just occurred in federal court in Westchester, in Lava Records v. Amurao II. The RIAA had brought suit against Rolando Amurao, a middle aged man who knew nothing about file sharing. After haranguing him for 2 years, they dropped the case and sued his daughter, Audrey, who had used LimeWire years ago. When the RIAA moved for summary judgment against Audrey, however, she surprised them with a summary judgment motion of her own, calling for dismissal of the complaint on the grounds that the statute of limitations had run out on the RIAA's claims. The brief filed by her attorney (PDF) also points out some of the other infirmities in the RIAA's case, such as the inadmissibility of its evidence, the legal nonexistence of a claim for 'making available,' and the unconstitutionality of its damages theory. According to sources, the RIAA is unhappy about Audrey's motion, and is preparing a letter to send the Judge asking the Judge not to allow her to make it. Meanwhile, Audrey's father's case, Lava Records v. Rolando Amurao, is on appeal in the US Court of Appeals for the 2d Circuit over the issue of whether the RIAA should have to reimburse Mr. Amurao for his attorneys fees. Although the appeal was fully briefed and scheduled for argument May 19th, the RIAA has been asking for postponements of the argument."

NewYorkCountryLawyer writes "If a regular 'country lawyer' like myself had taken a case like the RIAA's in Capitol Records v. Thomas-Rasset to court, he or she would have been laughed out of the courthouse. But when it's the RIAA suing, the plaintiffs are awarded a $1.92 million verdict for the infringement of $23.76 worth of song files. That's because RIAA litigation proceeds in a parallel universe, which on its face looks like litigation, but isn't. On my blog I fantasize as to how the trial would have ended had it taken place not in the 'parallel universe,' but in the real world of litigation. In that world, the case would have been dismissed. And if the Judge had submitted it to the jury instead of dismissing, and the jury had ruled in favor of the RIAA, the 'statutory damages' awarded would have been less than $18,000."

NewYorkCountryLawyer writes "Well the price went up from $9250 per song file to $80,000 per song file, as the jury awarded the RIAA statutory damages of $1,920,000.00 for infringement of 24 MP3s, in Capitol Records v. Thomas-Rasset. In this trial, although the defendant had an expert witness of her own, she never called him to testify, and her attorneys never challenged the technical evidence offered by the RIAA's MediaSentry and Doug Jacobson. Also, neither the special verdict form nor the jury instructions spelled out what the elements of a 'distribution' are, or what needed to be established by the plaintiffs in order to recover statutory — as opposed to actual — damages. No doubt there will now have to be a third trial, and no doubt the unreasonableness of the verdict will lend support to those arguing that the RIAA's statutory damages theory is unconstitutional." Update: 06/19 01:39 GMT by T : Lots more detail at Ars Technica, too.

NewYorkCountryLawyer writes "The RIAA's first trial verdict having been tossed out last year, the RIAA is coming back for a second round starting Monday. This time the trial will be in Minneapolis, rather than Duluth, and the defendant will have a team of pro bono lawyers on her side. But perhaps the most important new development is that this time, the 'technical' evidence garnered by MediaSentry and 'explained' by the RIAA's expert witness Doug Jacobson, will not get the free pass it got the first time around. In the 2007 trial in Capitol Records v. Thomas, no objection was made by defendant's lawyer to the MediaSentry/Doug Jacobson 'evidence' upon which the RIAA relied, and the evidence was admitted without objection. This time there will be no free ride, as defendant's tech-savvy lawyers have already filed a list of objections to the RIAA's proposed exhibits. Most notably, they attack the 'technical' materials submitted by MediaSentry and Dr. Doug Jacobson under Rule 702 of the Federal Rules of Evidence, which requires evidence based on 'scientific, technical, or other specialized knowledge' to be based on sufficient facts or data, to be the product of reliable principles and methods, and to be the result of those principles and methods having been applied reliably to the facts of the case. If the evidence fails to meet those standards, it is inadmissible. This judge has already shown acute awareness of these principles in deciding which subjects the defendant's expert could and could not address. This should be interesting."

NewYorkCountryLawyer writes "In Capitol Records v. Thomas-Rasset, the judge has denied the defendant's motion to suppress the MediaSentry evidence for illegality, holding that MediaSentry's conduct did not violate any of the three laws cited by the defendant. The judge also dismissed most of the RIAA's objections to testimony by the defendant's expert, Prof. Yongdae Kim, but did sustain some of them. In his 27-page decision (PDF), Judge Davis ruled that Prof. Kim could testify about the 'possible scenarios,' but could not opine as to what he thinks 'probably' occurred. The court also ruled that, 'given the evidence that there is no wireless router involved in this case, the Court excludes Kim's opinion that it is possible that someone could have spoofed or hijacked Defendant's Internet account through an unprotected wireless access point. Similarly, because Kim explicitly testified that this case does not involve any "black IP space," or any "temporarily unused" IP space ...., he is not permitted to opine at trial that hijacking of black IP space or temporary unused IP is a possible explanation in this case.' Dr. Kim was also precluded from testifying as to whether song files were conspicuously placed in a shared files folder or were wilfully offered for distribution. The judge also precluded him from testifying about Kazaa's functioning, but it was unclear to me what the judge was precluding him from saying, because the offered testimony seemed to relate only to the question of whether the Kazaa-reported IP address precluded the possibility of the device having been run behind a NAT device."

NewYorkCountryLawyer writes "In Capitol Records v. Thomas-Rasset, the judge has denied the defendant's motion to suppress the MediaSentry evidence for illegality, holding that MediaSentry's conduct did not violate any of the three laws cited by the defendant. The judge also dismissed most of the RIAA's objections to testimony by the defendant's expert, Prof. Yongdae Kim, but did sustain some of them. In his 27-page decision (PDF), Judge Davis ruled that Prof. Kim could testify about the 'possible scenarios,' but could not opine as to what he thinks 'probably' occurred. The court also ruled that, 'given the evidence that there is no wireless router involved in this case, the Court excludes Kim's opinion that it is possible that someone could have spoofed or hijacked Defendant's Internet account through an unprotected wireless access point. Similarly, because Kim explicitly testified that this case does not involve any "black IP space," or any "temporarily unused" IP space ...., he is not permitted to opine at trial that hijacking of black IP space or temporary unused IP is a possible explanation in this case.' Dr. Kim was also precluded from testifying as to whether song files were conspicuously placed in a shared files folder or were wilfully offered for distribution. The judge also precluded him from testifying about Kazaa's functioning, but it was unclear to me what the judge was precluding him from saying, because the offered testimony seemed to relate only to the question of whether the Kazaa-reported IP address precluded the possibility of the device having been run behind a NAT device."

NewYorkCountryLawyer writes "In the Duluth, Minnesota case headed for a re-trial on June 15th, Capitol Records v. Thomas-Rasset, the RIAA has filed a motion seeking to bar the defendant, Jammie Thomas-Rasset (she got married recently), from making objections to the plaintiffs' copyright registration documents. To preempt those of you reacting with shock and anger at the American judicial system, let me assure you this motion has nothing to do with the American judicial system; the RIAA's motion has the chance of a snowball in Hell of being granted, as there is simply no legal basis for preventing a person from making valid legal objections in Trial #2, just because the lawyer she had in Trial #1 didn't make similar objections. I'm guessing that the RIAA lawyers realized they have some kind of problem with their paperwork, and thought this a clever way of short-circuiting it. Instead, of course, they have merely red-flagged it for Ms. Thomas-Rasset's new legal team. A few days earlier, the RIAA lawyers filed a similarly ludicrous motion trying to keep Ms. Thomas-Rasset's expert witness from testifying; that too is doomed."

NewYorkCountryLawyer writes "In Capitol v. Thomas, the RIAA's Minnesota case scheduled for trial on June 15th, the defendant's new attorneys have filed a motion to suppress all of the evidence procured by MediaSentry, on the ground that it was obtained in violation of state and federal criminal statutes. The defendant's brief (PDF) accuses MediaSentry of violations of the Minnesota Private Detectives Act, the federal Pen Register and Trap and Trace Devices Act, and the federal Electronic Communications Privacy Act of 1986. The motion is scheduled to be argued on June 10th."

NewYorkCountryLawyer writes "In Capitol v. Thomas, the RIAA's Minnesota case scheduled for trial on June 15th, the defendant's new attorneys have filed a motion to suppress all of the evidence procured by MediaSentry, on the ground that it was obtained in violation of state and federal criminal statutes. The defendant's brief (PDF) accuses MediaSentry of violations of the Minnesota Private Detectives Act, the federal Pen Register and Trap and Trace Devices Act, and the federal Electronic Communications Privacy Act of 1986. The motion is scheduled to be argued on June 10th."

NewYorkCountryLawyer writes "If one attempted to distill a single prevailing emotion or attitude about government on Slashdot, I think it is fairly arguable that the winner would be cynicism or skepticism. Well here's a story that could make us skeptical and/or cynical about our skepticism and/or cynicism. Chalk one up for those who like to point out that, occasionally, the system does work. You may recall that the US Supreme Court has been mulling over whether to grant the film industry's petition for certiorari seeking to overturn the important Cartoon Networks v. CSC Holdings decision from the US Court of Appeals for the 2nd Circuit. This was the case which held that Cablevision's allowing its customers to make copies of shows and store them on Cablevision's servers for later viewing did not constitute a direct copyright infringement by Cablevision, there being no 'copy' made since the files were in RAM and buffered for only a 'transitory' duration. The Supreme Court asked the Obama DoJ to submit an amicus curiae brief, giving its opinion on whether or not the film companies' petition for review should be granted. The government did indeed file such a brief, but the content of the brief (PDF) is probably not what the film companies were expecting. They probably thought they had this one in the bag, since some of the very lawyers who have been representing them have been appointed to the highest echelons of the Obama DoJ. Instead, however, the brief eloquently argued against the film companies' position, dismembering with surgical accuracy each and every argument the film companies had advanced."

NewYorkCountryLawyer writes "If one attempted to distill a single prevailing emotion or attitude about government on Slashdot, I think it is fairly arguable that the winner would be cynicism or skepticism. Well here's a story that could make us skeptical and/or cynical about our skepticism and/or cynicism. Chalk one up for those who like to point out that, occasionally, the system does work. You may recall that the US Supreme Court has been mulling over whether to grant the film industry's petition for certiorari seeking to overturn the important Cartoon Networks v. CSC Holdings decision from the US Court of Appeals for the 2nd Circuit. This was the case which held that Cablevision's allowing its customers to make copies of shows and store them on Cablevision's servers for later viewing did not constitute a direct copyright infringement by Cablevision, there being no 'copy' made since the files were in RAM and buffered for only a 'transitory' duration. The Supreme Court asked the Obama DoJ to submit an amicus curiae brief, giving its opinion on whether or not the film companies' petition for review should be granted. The government did indeed file such a brief, but the content of the brief (PDF) is probably not what the film companies were expecting. They probably thought they had this one in the bag, since some of the very lawyers who have been representing them have been appointed to the highest echelons of the Obama DoJ. Instead, however, the brief eloquently argued against the film companies' position, dismembering with surgical accuracy each and every argument the film companies had advanced."

NewYorkCountryLawyer writes "You may recall that a few weeks ago the Court rendered a detailed decision providing for safeguards in connection with the RIAA's proposed inspection of the defendant's hard drive in SONY BMG Music Entertainment v. Tenenbaum. The decision instructed the RIAA to submit a proposed protective order consistent with the Court's decision. The RIAA submitted a proposed protective order yesterday, which attracted some thoughtful commentary by readers of my blog, but today the Court rejected the RIAA's suggested order, explicitly rejecting many of the 'enhancements' included by the RIAA, including production of 'videos' and 'playlists' which might be found on the hard drive. Instead the Court entered an order the Court itself had drafted. The Court explained that 'the purpose of compelling inspection is to identify information reasonably calculated to provide evidence of any file-sharing of Plaintiffs' copyrighted music sound files conducted on the Defendant's computer. Once this data is identified by the computer forensic expert... any disclosure shall flow through the Defendant subject to his assertion of privilege and the Court's authority to compel production, just as disclosure would occur in any other pre-trial discovery setting... (1) As should have been clear from the Court's May 6, 2009 Order, although the Plaintiffs may select experts of their choosing, these individuals are not to be employees of the Plaintiffs or their counsel, but must be third-parties held to the strictest standards of confidentiality; (2) the inspection is limited to music sound files, metadata associated with music sound files, and information related to the file-sharing of music sound files — it shall not include music "playlists" or any other type of media file (e.g., video); (3) the Examining Expert shall be required to disclose both the methods employed to inspect the hard drive and any instruction or guidance received from the Plaintiffs.'"