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Domain: beckermanlegal.com
Stories and comments across the archive that link to beckermanlegal.com.
Stories · 157
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Jammie Thomas May Face RIAA Trial Alone
NewYorkCountryLawyer writes "With her trial coming up on June 15th, Jammie Thomas has received a motion by her lawyer to withdraw from the highly publicized case, Capitol Records v. Thomas. Ms. Thomas said in a written declaration (PDF) obtained from her by her lawyer that she was not opposed to the lawyer's withdrawal, and waived any hearing on the matter. The court papers submitted by the lawyer (PDF) also indicated that the RIAA was not opposed to the withdrawal — i.e. it graciously consented to Ms. Thomas having no legal representation — but was opposed to any continuance (i.e. the RIAA wants to make sure that Ms. Thomas does not have sufficient time to find other legal representation, or to prepare to handle the trial herself, or to enable new counsel to prepare to handle the trial). Nice of them." -
Jammie Thomas May Face RIAA Trial Alone
NewYorkCountryLawyer writes "With her trial coming up on June 15th, Jammie Thomas has received a motion by her lawyer to withdraw from the highly publicized case, Capitol Records v. Thomas. Ms. Thomas said in a written declaration (PDF) obtained from her by her lawyer that she was not opposed to the lawyer's withdrawal, and waived any hearing on the matter. The court papers submitted by the lawyer (PDF) also indicated that the RIAA was not opposed to the withdrawal — i.e. it graciously consented to Ms. Thomas having no legal representation — but was opposed to any continuance (i.e. the RIAA wants to make sure that Ms. Thomas does not have sufficient time to find other legal representation, or to prepare to handle the trial herself, or to enable new counsel to prepare to handle the trial). Nice of them." -
Jammie Thomas May Face RIAA Trial Alone
NewYorkCountryLawyer writes "With her trial coming up on June 15th, Jammie Thomas has received a motion by her lawyer to withdraw from the highly publicized case, Capitol Records v. Thomas. Ms. Thomas said in a written declaration (PDF) obtained from her by her lawyer that she was not opposed to the lawyer's withdrawal, and waived any hearing on the matter. The court papers submitted by the lawyer (PDF) also indicated that the RIAA was not opposed to the withdrawal — i.e. it graciously consented to Ms. Thomas having no legal representation — but was opposed to any continuance (i.e. the RIAA wants to make sure that Ms. Thomas does not have sufficient time to find other legal representation, or to prepare to handle the trial herself, or to enable new counsel to prepare to handle the trial). Nice of them." -
Can Cable Companies Store Shows For Us?
NewYorkCountryLawyer writes "Last August I reported that the US Court of Appeals for the 2nd Circuit had defeated the MPAA's attempt to label as copyright infringement a cable operator's storing video for later reuse at the request of its subscribers, in Cartoon Networks v. CSC Holdings. The MPAA has petitioned the US Supreme Court to review that holding. According to a recent interview with Gigi Sohn of Public Knowledge, the High Court has not yet decided whether to grant the MPAA's petition seeking review. What I found odd about the 2nd Circuit decision (PDF) is that (a) although 'fair use' was the most logical defense to be employed in view of the Supreme Court's holding in SONY Betamax, upholding a VCR's 'time shifting' of a broadcast television show as a 'fair use,' the defendant in Cartoon Networks has stipulated to waive 'fair use,' and (b) although the easier legal theory for plaintiff to prove would have been secondary, rather than primary, copyright infringement (i.e. Cablevision's encouraging and inducing its customers to make unauthorized copies), the MPAA has stipulated to waive that line of attack. I.e. neither plaintiffs nor defendants seized the 'low hanging fruit.' In her interview, Ms. Sohn discusses the fair use defense, but I'm not sure why she does, since as I recall the defendant has waived it." -
Can Cable Companies Store Shows For Us?
NewYorkCountryLawyer writes "Last August I reported that the US Court of Appeals for the 2nd Circuit had defeated the MPAA's attempt to label as copyright infringement a cable operator's storing video for later reuse at the request of its subscribers, in Cartoon Networks v. CSC Holdings. The MPAA has petitioned the US Supreme Court to review that holding. According to a recent interview with Gigi Sohn of Public Knowledge, the High Court has not yet decided whether to grant the MPAA's petition seeking review. What I found odd about the 2nd Circuit decision (PDF) is that (a) although 'fair use' was the most logical defense to be employed in view of the Supreme Court's holding in SONY Betamax, upholding a VCR's 'time shifting' of a broadcast television show as a 'fair use,' the defendant in Cartoon Networks has stipulated to waive 'fair use,' and (b) although the easier legal theory for plaintiff to prove would have been secondary, rather than primary, copyright infringement (i.e. Cablevision's encouraging and inducing its customers to make unauthorized copies), the MPAA has stipulated to waive that line of attack. I.e. neither plaintiffs nor defendants seized the 'low hanging fruit.' In her interview, Ms. Sohn discusses the fair use defense, but I'm not sure why she does, since as I recall the defendant has waived it." -
Court Sets Rules For RIAA Hard Drive Inspection
NewYorkCountryLawyer writes "In a Boston RIAA case, SONY BMG Music Entertainment v. Tenenbaum, the Court has issued a detailed protective order establishing strict protocols for the RIAA's requested inspection of the defendant's hard drive, in order to protect the defendant's privacy. The order (PDF) provides that the hard drive will be turned over to a computer forensics expert of the RIAA's choosing, for mirror imaging, but that only the forensics expert — and not the plaintiffs or their attorneys — will be able to examine the mirror image. The forensics expert will then issue a report which will describe (a) any music files found on the drive, (b) any file-sharing information associated with each file, and any other records of file-sharing activity, and (c) any evidence that the hard-drive has been 'wiped' or erased since the initiation of the litigation. The expert will be precluded from examining 'any non-relevant files or data, including ... emails, word-processing documents, PDF documents, spreadsheet documents, image files, video files, or stored web-pages.'" -
Court Sets Rules For RIAA Hard Drive Inspection
NewYorkCountryLawyer writes "In a Boston RIAA case, SONY BMG Music Entertainment v. Tenenbaum, the Court has issued a detailed protective order establishing strict protocols for the RIAA's requested inspection of the defendant's hard drive, in order to protect the defendant's privacy. The order (PDF) provides that the hard drive will be turned over to a computer forensics expert of the RIAA's choosing, for mirror imaging, but that only the forensics expert — and not the plaintiffs or their attorneys — will be able to examine the mirror image. The forensics expert will then issue a report which will describe (a) any music files found on the drive, (b) any file-sharing information associated with each file, and any other records of file-sharing activity, and (c) any evidence that the hard-drive has been 'wiped' or erased since the initiation of the litigation. The expert will be precluded from examining 'any non-relevant files or data, including ... emails, word-processing documents, PDF documents, spreadsheet documents, image files, video files, or stored web-pages.'" -
Papers Sealed In Class Action Against RIAA
NewYorkCountryLawyer writes "In Andersen v. Atlantic Recording, the Oregon class action brought by Tanya Anderson against the RIAA, MediaSentry, and others, the plaintiff's motion for class action certification has been sealed by the Court. Also, the Court conducted an 'in camera' conference with the defendants' attorneys — meaning the Judge met with the defendants' attorneys alone — in connection with a discovery motion, and the record of that conference has been sealed as well. The RIAA has made a motion to dismiss the class action; that has not been sealed. In case you're wondering what's going on here, so am I." -
Appeals Court Stays RIAA Subpoena Vs. Students
NewYorkCountryLawyer writes "The procedures used by the RIAA the past 5 years in suing 'John Does' without their knowing about it have never been subjected to scrutiny by an appeals court, since most of the 'John Does' never learn about the 'ex parte' proceeding until it's too late to do anything about it. That is about to change. In Arista Records v. Does 1-16, a case targeting students at the Albany Campus of the State University of New York, the US Court of Appeals for the Second Circuit has decided to put things on hold while it takes a careful look at what transpired in the lower court. The way it came to this is that a few 'John Does' filed a broad-based challenge to a number of the RIAA's procedures, citing the defendant's constitutional rights, the insufficiency of the complaint, the lack of personal jurisdiction over the defendants, improper misjoinder of the defendants, and the RIAA's illegal procurement of its 'evidence' through the use of an unlicensed investigator, MediaSentry. The lower court judges gave short shrift to 'John Doe #3,' but he promptly filed an appeal, and asked for a stay of the subpoena and lower court proceedings during the pendency of the appeal. The RIAA opposed the motion, arguing that John Doe's appeal had no chance of success. The Appeals Court disagreed and granted the motion, freezing the subpoena and putting the entire case on hold until the appeal is finally determined. As one commentator said, 'this news has been a long time coming, but is welcomed.'" -
RIAA Brief Attacks Free Software Foundation
NewYorkCountryLawyer writes "The RIAA has requested permission to file a response to the amicus curiae brief filed by the Free Software Foundation in SONY BMG Music Entertainment v. Tenenbaum, the Boston case against a Boston University grad student accused of having downloaded some song files when in his teens. In their proposed response, the RIAA lawyers personally attacked The Free Software Foundation, Ray Beckerman (NewYorkCountryLawyer), and NYCL's blog, 'Recording Industry vs. The People.' The 9-page response (PDF) — 4 pages longer than the document to which it was responding — termed the FSF an organization 'dedicated to eliminating restrictions on copying, redistribution, and modifying computer programs,' and accused the FSF of having an 'open and virulent bias against copyrights' and 'blatant bias' against the record companies. They called 'Recording Industry vs. The People' an 'anti-recording industry web site' and stated that NYCL 'is currently subject to a pending sanctions motion for his conduct in representing a defendant' (without disclosing that plaintiffs' lawyers were 'subject to a pending motion for Rule 11 sanctions for their conduct in representing plaintiffs' in that very case)." -
RIAA Brief Attacks Free Software Foundation
NewYorkCountryLawyer writes "The RIAA has requested permission to file a response to the amicus curiae brief filed by the Free Software Foundation in SONY BMG Music Entertainment v. Tenenbaum, the Boston case against a Boston University grad student accused of having downloaded some song files when in his teens. In their proposed response, the RIAA lawyers personally attacked The Free Software Foundation, Ray Beckerman (NewYorkCountryLawyer), and NYCL's blog, 'Recording Industry vs. The People.' The 9-page response (PDF) — 4 pages longer than the document to which it was responding — termed the FSF an organization 'dedicated to eliminating restrictions on copying, redistribution, and modifying computer programs,' and accused the FSF of having an 'open and virulent bias against copyrights' and 'blatant bias' against the record companies. They called 'Recording Industry vs. The People' an 'anti-recording industry web site' and stated that NYCL 'is currently subject to a pending sanctions motion for his conduct in representing a defendant' (without disclosing that plaintiffs' lawyers were 'subject to a pending motion for Rule 11 sanctions for their conduct in representing plaintiffs' in that very case)." -
Appeals Court Says RIAA Hearing Can't Be Streamed
NewYorkCountryLawyer writes "The US Court of Appeals for the First Circuit has overturned a lower court order permitting webcast of an oral argument in an RIAA case, SONY BMG Music Entertainment v. Tenenbaum, in Boston. As one commentator put it, the decision gives the RIAA permission to 'cower behind the same legal system they're using to pillory innocent people.' Ironically, the appeals court's own hearing had been webcast, via an mp3 file. The court admitted that this was not an appropriate case for a 'prerogative writ' of 'mandamus,' but claimed to have authority to issue a writ of 'advisory mandamus.' The opinion came as a bit of a surprise to me because the judges appeared, during the oral argument, to have a handle on the issues. The decision gave me no such impression. From where I sit, the decision was wrong in a number of respects, among them: (a) it contradicted the plain wording of the district court rule, (b) it ignored the First Amendment implications, and (c) there is no such thing as 'advisory' mandamus or 'advisory' anything — our federal courts are specifically precluded from giving advisory opinions." -
Copyright Scholar Challenges RIAA/DOJ Position
NewYorkCountryLawyer writes "Leading copyright law scholar Prof. Pamela Samuelson, of the University of California law school, and research fellow Tara Wheatland, have published a 'working paper' which directly refutes the position taken by the US Department of Justice in RIAA cases on the constitutionality of the RIAA's statutory damages theories. The Department of Justice had argued in its briefs that the Court should follow a 1919 United States Supreme Court case which upheld the constitutionality of a statutory damages award that was 116 times the actual damages sustained, under a statute which gave consumers a right of action against railway companies. The Free Software Foundation filed an amicus curiae brief supporting the view that the more modern, State Farm/Gore test applied by the United States Supreme Court to punitive damages awards is applicable. The new paper is consistent with the FSF brief and contradicts the DOJ briefs, arguing that the Gore test should be applied. A full copy of the paper is available for viewing online (PDF)." -
RIAA Backs Down In Texas Case
NewYorkCountryLawyer writes "After receiving a Rule 11 Sanctions Motion (PDF) in a Houston, Texas, case, UMG Recordings v. Lanzoni, the RIAA lawyers thought better of proceeding with the case, and agreed to voluntarily dismiss the case 'with prejudice', which means it is over and cannot be brought again. The defendant's motion papers detailed some of the RIAA's litigation history against innocent individuals, such as Capitol Records v. Foster and Atlantic Recording v. Andersen, and argued that the awarding of attorneys fees in those cases has not sufficiently deterred repetition of the misconduct, so that a stronger remedy — Rule 11 sanctions — is now called for." -
Obama DOJ Sides With RIAA
NewYorkCountryLawyer writes "The Obama Administration's Department of Justice, with former RIAA lawyers occupying the 2nd and 3rd highest positions in the department, has shown its colors, intervening on behalf of the RIAA in the case against a Boston University graduate student, SONY BMG Music Entertainment v. Tenenbaum, accused of file sharing when he was 17 years old. Its oversized, 39-page brief (PDF) relies upon a United States Supreme Court decision from 1919 which upheld a statutory damages award, in a case involving overpriced railway tickets, equal to 116 times the actual damages sustained, and a 2007 Circuit Court decision which held that the 1919 decision — rather than the Supreme Court's more recent decisions involving punitive damages — was applicable to an award against a Karaoke CD distributor for 44 times the actual damages. Of course none of the cited cases dealt with the ratios sought by the RIAA: 2,100 to 425,000 times the actual damages for an MP3 file. Interestingly, the Government brief asked the Judge not to rule on the issue at this time, but to wait until after a trial. Also interestingly, although the brief sought to rebut, one by one, each argument that had been made by the defendant in his brief, it totally ignored all of the authorities and arguments that had been made by the Free Software Foundation in its brief. Commentators had been fearing that the Obama/Biden administration would be tools of the RIAA; does this filing confirm those fears?" -
FSF Files Amicus Brief In RIAA Case
NewYorkCountryLawyer writes "The Free Software Foundation has requested permission to file an amicus curiae brief in an RIAA case, SONY BMG Music Entertainment v. Tenenbaum, defending the defendant's Due Process defense to the RIAA's claim for statutory damages. In the brief [PDF], FSF cites some of the leading authorities for the defense, including the 2003 decision of the US Court of Appeals for the 2nd Circuit in Parker v. Time Warner, which held that excessive statutory damages are subject to the same due process test applicable to punitive damage awards by juries. Additionally, the brief cites three district court decisions, including UMG v. Lindor, and two law review articles — all of which deal specifically with Copyright Act statutory damages applicable to infringement of an MP3 file — to like effect." -
Appeals Court Stays RIAA Subpoena
NewYorkCountryLawyer writes "The United States Court of Appeals for the Second Circuit has stepped in and issued a temporary stay of the RIAA's subpoena for the identity of a student at the State University of New York in Albany. The student, 'John Doe #3,' had filed an appeal and motion for stay pending appeal, arguing that the appeal 'raises significant issues, some of first impression' (PDF), such as the standards for the use of ex parte procedures for expedited discovery, the scope of the First Amendment right of anonymity over the internet, the scope of the distribution right in copyright law, and the pleading requirements for infringement of such right." -
Sheriff Sues Craiglist For Prostitution Ads
Amerika writes "Craigslist is 'the single largest source of prostitution in the nation,' according to Cook County, Illinois Sheriff Thomas Dart. He has announced that he's filing a lawsuit against the popular classifieds site. Craigslist says it's determined to prevent criminal activity." NewYorkCountryLawyer adds a link to the 28-page complaint (PDF), which "alleges that Craigslist maintains 21 classifications of sex-for-hire, coded as 'w4m,' 'm4m,' 'm4w,' etc." and that it has facilitated child prostitution and kidnapping and human trafficking. -
MediaSentry & RIAA Expert Under Attack
NewYorkCountryLawyer writes "Jammie Thomas, the defendant in Duluth, Minnesota, RIAA case Capitol Records v. Thomas, has served her expert witness's report. The 30-page document (PDF), prepared by Prof. Yongdae Kim of the Computer Science Department of the University of Minnesota, attacks the reports and testimony of Prof. Doug Jacobson, the RIAA's expert, and the work of the RIAA's investigator, Safenet (formerly known as MediaSentry). Among other things, Dr. Kim termed MediaSentry's methods 'highly suspect,' debunked Dr. Jacobson's 'the internet is like a post office' analogy, explained in detail how FastTrack works, explored a sampling of the types of attacks to which the defendant's computer may have been subjected, accused Jacobson of making 'numerous misstatements,' and concluded that 'there is not one but numerous possible explanations for the evidence presented during this trial. Throughout the report I demonstrate possibilities not considered by the plaintiff's expert witness in his evaluation of the evidence...' Additionally, he concluded, 'MediaSentry has a strong record of mistakes when claiming that particular IP addresses were the origins of copyright infringement. Their lack of transparency, lack of external review, and evidence of inadequate error checking procedures [put] into question the authenticity and validity of the log files and screenshots they produced.'" -
Judge Orders Record Company Execs To Duluth
NewYorkCountryLawyer writes "Lest there be any doubt that District Judge Michael J. Davis, presiding over the Duluth, Minnesota, case, Capitol Records v. Thomas, really does 'get it' about the toxic effect the RIAA, its lead henchman Matthew Oppenheim, and their lawyers have had on the judicial process, all such doubt should be removed by the order he just entered (PDF). It removes control of the decision-making process from the RIAA, Oppenheim, and the lawyers. In the order Judge Davis spells out, in the clearest possible terms so that there can be no misunderstanding, that at the extraordinary 2-day settlement conference he has scheduled for later this month, each record company plaintiff is ordered to produce an 'officer' of the corporation, or a 'managing agent' of the corporation, who has corporate, decision-making, 'power.' The judge makes it clear that no one who has 'settlement authority' with any limits or range attached to it will be acceptable. This means that 'RIAA hitman' Matthew Oppenheim will not be able to control the settlement process as he has been permitted by the Courts to do in the past." -
Appeals Court Strikes Down California's Violent Game Ban
NewYorkCountryLawyer writes "The US Court of Appeals for the Ninth Circuit has struck down as unconstitutional a California statute purporting to ban the sale or rental of violent video games to minors. In a 30-page decision (PDF), in Video Software Dealers Association v. Schwarzenegger, the federal appeals court ruled that 'the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the 'variable obscenity' standard from Ginsberg v. New York, 390 U.S. 629 (1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State's expressed interests. Additionally, we hold that the Act's labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State's controversial opinion.'" -
Will Obama's DOJ Intervene To Help RIAA?
NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Cloud, a Pennsylvania case in which the RIAA's statutory damages theory — seeking from 2,200 to 450,000 times the amount of actual damages — is being tested, the US Department of Justice has just filed papers indicating that it is considering intervening in the case to defend the constitutionality of such awards, and requesting an extension of time (PDF) in which to decide whether such intervention 'is appropriate.' This is an early test of whether President Obama will make good on his promises (a) not to allow industry insiders to participate in cases affecting the industry they represented (the 2nd and 3rd highest DOJ officials are RIAA lawyers) and (b) to look out for ordinary citizens rather than big corporations." -
RIAA Drops Enforcement Case To "Sort Out" Inaccuracies
NewYorkCountryLawyer writes "The other day I reported on my blog that the record companies had assigned, to the RIAA itself, a $4000 default judgment they'd gotten against some lady in Massachusetts, and that the RIAA was going after the defendant with an 'enforcement' proceeding to squeeze the money out of her. Today, it turns out, the RIAA withdrew its motion because, according to the RIAA's collection lawyer, the motion 'contained factual inaccuracies ... which plaintiff needs to sort out' (PDF). The collection lawyer must be new around here; a few little 'factual inaccuracies' never bothered an RIAA lawyer before." -
RIAA Lied To Congress About New Filesharing Suits
NewYorkCountryLawyer writes "On December 23, 2008, the RIAA's Mitch Bainwol sent a letter to the Judiciary and Commerce Committees of both the House and Senate, falsely representing to them that the RIAA 'discontinued initiating new lawsuits in August.' A copy of the letter is online (PDF). In fact, as many of you already know, the RIAA brought hundreds of new lawsuits since August. See, e.g., these 40 or so cases which just represent some of the cases brought in December." Maybe they're just taking a broad view of the world "initiate." -
RIAA Threatens Harvard Law Prof With Sanctions
NewYorkCountryLawyer writes "Unhappy with Harvard Law Professor Charles Nesson's motion to compel the deposition of the RIAA's head 'Enforcer', Matthew J. Oppenheim, in SONY BMG Music v. Tenenbaum, the RIAA threatened the good professor with sanctions (PDF) if he declined to withdraw his motion. Then the next day they filed papers opposing the motion, and indeed asked the Court to award monetary sanctions under Rule 37 of the Federal Rules of Civil Procedure." -
17,000 Downloads Does Not Equal 17,000 Lost Sales
Andrew_Rens writes "Ars Technica has a story on a ruling by a US District Judge who rejects claims by the RIAA that the number of infringing downloads amounts to proof of the same number of lost sales. The judge ruled that 'although it is true that someone who copies a digital version of a sound recording has little incentive to purchase the recording through legitimate means, it does not necessarily follow that the downloader would have made a legitimate purchase if the recording had not been available for free.' The ruling concerns the use of the criminal courts to recover alleged losses for downloading through a process known as restitution. The judgement does not directly change how damages are calculated in civil cases." -
RIAA Hearing Next Week Will Be Televised
NewYorkCountryLawyer writes "One commentator labels it 'another fly in the RIAA's ointment.' In SONY BMG Music v. Tenenbaum, the Boston, Massachusetts, RIAA case in which the defendant is represented by Harvard law professor Charles Nesson and a group of his students, the Judge has ruled that the hearing scheduled for January 22nd will be televised over the Internet. The hearing will relate to Mr. Tenenbaum's counterclaims against the record companies and against the RIAA. In her 11-page opinion (PDF), District Judge Nancy Gertner labeled as 'curious' the record companies' opposition to televising the proceedings, since their professed reason for bringing the cases is deterrence, 'a strategy [which] effectively relies on the publicity arising from this litigation'." -
RIAA Gives Up In Atlantic Recording v. Brennan
NewYorkCountryLawyer writes "In Atlantic Recording v. Brennan, the landmark Connecticut case in which the first decision rejecting the RIAA's 'making available' theory was handed down, the RIAA has finally thrown in the towel and dismissed its own case. Mr. Brennan never appeared in the case at all. In February, 2008, the RIAA's motion for a default judgment was rejected for a number of reasons, including the Court's ruling (PDF) that there is no claim for 'making available for distribution' under the US Copyright Act. The RIAA moved for reconsideration; that motion was denied. Then, in December, the RIAA's second motion for default judgment was rejected. Finally the RIAA filed a 'notice of dismissal' ending the case." -
Capitol Records Flooded Internet With MP3s, Says MP3Tunes CEO
NewYorkCountryLawyer writes "In court papers filed in New York in Capitol Records v. MP3Tunes, the CEO of MP3Tunes, Michael Robertson, has accused the plaintiffs EMI, Capitol Records, and other EMI record labels of flooding the internet with free MP3s of their songs for promotional purposes, 'free to everyone (except, apparently, MP3tunes).' His 10-page declaration (PDF) provides exact details of specific song files, including the URLs from which they are being distributed free of charge, both by paid content distributors, and by EMI itself from its own web sites." -
Entire Transcript of RIAA's Only Trial Now Online
NewYorkCountryLawyer writes "The entire transcript of the RIAA's 'perfect storm,' its first and only trial, which resulted in a $222,000 verdict in a case involving 24 MP3's having a retail value of $23.76, is now available online. After over a year of trying, we have finally obtained the transcript of the Duluth, Minnesota, jury trial which took place October 2, 2007, to October 4, 2007, in Capitol Records v. Thomas. Its 643 pages represent a treasure trove for (a) lawyers representing defendants in other RIAA cases, (b) technologists anxious to see how a MediaSentry investigator and the RIAA's expert witness combined to convince the jurors that the RIAA had proved its case, and (c) anybody interested in finding out about such things as the early-morning October 4th argument in which the RIAA lawyer convinced the judge to make the mistake which forced him to eventually vacate the jury's verdict, and the testimony of SONY BMG's Jennifer Pariser in which she 'misspoke' according to the RIAA's Cary Sherman when she testified under oath that making a copy from one's CD to one's computer is 'stealing.' The transcript was a gift from the 'Joel Fights Back Against RIAA' team defending SONY BMG Music Entertainment v. Tenenbaum, in Boston, Massachusetts. I have the transcript in 3 segments: October 2nd (278 pages(PDF), October 3rd (263 pages)(PDF), and October 4th (100 pages)(PDF)." -
Entire Transcript of RIAA's Only Trial Now Online
NewYorkCountryLawyer writes "The entire transcript of the RIAA's 'perfect storm,' its first and only trial, which resulted in a $222,000 verdict in a case involving 24 MP3's having a retail value of $23.76, is now available online. After over a year of trying, we have finally obtained the transcript of the Duluth, Minnesota, jury trial which took place October 2, 2007, to October 4, 2007, in Capitol Records v. Thomas. Its 643 pages represent a treasure trove for (a) lawyers representing defendants in other RIAA cases, (b) technologists anxious to see how a MediaSentry investigator and the RIAA's expert witness combined to convince the jurors that the RIAA had proved its case, and (c) anybody interested in finding out about such things as the early-morning October 4th argument in which the RIAA lawyer convinced the judge to make the mistake which forced him to eventually vacate the jury's verdict, and the testimony of SONY BMG's Jennifer Pariser in which she 'misspoke' according to the RIAA's Cary Sherman when she testified under oath that making a copy from one's CD to one's computer is 'stealing.' The transcript was a gift from the 'Joel Fights Back Against RIAA' team defending SONY BMG Music Entertainment v. Tenenbaum, in Boston, Massachusetts. I have the transcript in 3 segments: October 2nd (278 pages(PDF), October 3rd (263 pages)(PDF), and October 4th (100 pages)(PDF)." -
Entire Transcript of RIAA's Only Trial Now Online
NewYorkCountryLawyer writes "The entire transcript of the RIAA's 'perfect storm,' its first and only trial, which resulted in a $222,000 verdict in a case involving 24 MP3's having a retail value of $23.76, is now available online. After over a year of trying, we have finally obtained the transcript of the Duluth, Minnesota, jury trial which took place October 2, 2007, to October 4, 2007, in Capitol Records v. Thomas. Its 643 pages represent a treasure trove for (a) lawyers representing defendants in other RIAA cases, (b) technologists anxious to see how a MediaSentry investigator and the RIAA's expert witness combined to convince the jurors that the RIAA had proved its case, and (c) anybody interested in finding out about such things as the early-morning October 4th argument in which the RIAA lawyer convinced the judge to make the mistake which forced him to eventually vacate the jury's verdict, and the testimony of SONY BMG's Jennifer Pariser in which she 'misspoke' according to the RIAA's Cary Sherman when she testified under oath that making a copy from one's CD to one's computer is 'stealing.' The transcript was a gift from the 'Joel Fights Back Against RIAA' team defending SONY BMG Music Entertainment v. Tenenbaum, in Boston, Massachusetts. I have the transcript in 3 segments: October 2nd (278 pages(PDF), October 3rd (263 pages)(PDF), and October 4th (100 pages)(PDF)." -
RIAA's Request For Appeal Denied In Thomas Case
NewYorkCountryLawyer writes "The RIAA's request for permission to appeal from the decision setting aside its $222,000 jury verdict has been denied by District Court Judge Michael J. Davis. In a brief, 6-page decision (PDF) the Judge dismissed the RIAA's arguments that there is a 'substantial ground for a difference of opinion' on the question of law presented, whether the Judge had erred in accepting the RIAA's proposed jury instruction that merely 'making files available' could constitute an infringement of the plaintiffs' distribution rights. He likewise dismissed their argument that granting permission for the appeal would 'materially advance the ultimate termination of the litigation,' since (a) depending on the outcome of the trial, plaintiffs might not wish to appeal from the judgment, and (b) no matter how the appeals court rules on the 'making available' issue, the case will still have to continue in the lower court, since even if the RIAA wins on the 'making available' issue, the Court will still have to address the constitutionality of the large jury verdict, which may result in a new trial." -
RIAA Case May Be Televised On Internet
NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Boston case in which the defendant is represented by Prof. Charles Nesson and his CyberLaw class at Harvard Law School, the defendant has requested that audio-visual coverage of the court proceedings be made available to the public via the internet. Taking the RIAA at its word — that the reason for its litigation program is to 'educate the public' — the defendant's motion (PDF) queries why the RIAA would oppose public access: 'Net access to this litigation will allow an interested and growingly sophisticated public to understand the RIAA's education campaign. Surely education is the purpose of the Digital Deterrence Act of 1999, the constitutionality of which we are challenging. How can RIAA object? Yet they do, fear of sunlight shone upon them.'" -
RIAA May Be Violating a Court Order In California
NewYorkCountryLawyer writes "In one of its 'ex parte' cases seeking the names and addresses of 'John Does,' this one targeting students at the University of Southern California, the RIAA obtained an order granting discovery — but with a wrinkle. The judge's order (PDF) specified that the information obtained could not be used for any purpose other than obtaining injunctions against the students. Apparently the RIAA lawyers have ignored, or failed to understand, that limitation, as an LA lawyer has reported that the RIAA is busy calling up the USC students and their families and demanding monetary settlements." -
Judge Excludes 3 "John Does" From RIAA Subpoena
NewYorkCountryLawyer writes "In one of the RIAA's 'John Doe' cases targeting Boston University students, after the University wrote to the Court saying that it could not identify three of the John Does 'to a reasonable degree of technical certainty,' Judge Nancy Gertner deemed the University's letter a 'motion to quash,' and granted it, quashing the subpoena as to those defendants. In the very brief docket entry (PDF) containing her decision, she noted that 'compliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery.' There is an important lesson to be learned from this ruling: if the IT departments of the colleges and universities targeted by the RIAA would be honest, and explain to the Courts the problems with the identification and other technical issues, there is a good chance the subpoenas will be vacated. Certainly, there is now a judicial precedent for that principle. One commentator asks whether this holding 'represents the death knell to some, if not all, of the RIAA's efforts to use American university staff as copyright cops.'" -
RICO Class Action Against RIAA In Missouri
NewYorkCountryLawyer writes "In Atlantic Recording v. Raleigh, an RIAA case pending in St. Louis, Missouri, the defendant has asserted detailed counterclaims against the RIAA for federal RICO violations, fraud, violation of the Computer Fraud and Abuse Act, prima facie tort, trespass, and conspiracy. The claims focus on the RIAA's 'driftnet' tactic of suing innocent people, and of demanding extortionate settlements. The RICO 'predicate acts' alleged in the 42-page pleading (PDF) are extortion, mail fraud, and wire fraud. The proposed class includes all people residing in the US 'who were falsely accused ... of downloading copyrighted sound recordings owned by the counterclaim Defendants and making them available for distribution or mass distribution over a P2P network and who incurred costs and damages including legal fees in defense of such false claims' or 'whose computers used in interstate commerce and/or communication were accessed ... without permission or authority.' This is the second class action of which we are aware against the RIAA and the Big 4 recording companies, the first being the Oregon class action brought by Tanya Andersen, which is presently in the discovery phase." -
NYCL Responds to RIAA Accusations
NewYorkCountryLawyer writes "You may recall that when the RIAA decided to run away with its tail between its legs in the long running Brooklyn case against a home health aide who has never used a computer, UMG v. Lindor, it decided to take some parting shots at the defendant and NewYorkCountryLawyer, asking for 'discovery sanctions,' and blaming them for its inability to prove its case. Today NYCL gave them his response, accusing the RIAA lawyers of persistent misstatements of fact (PDF) throughout their motion papers, and of flouting the rules and misstating the law (PDF). Although the RIAA's motion papers took a number of shots at NYCL's copyright law blog, 'Recording Industry vs. The People,' NYCL confined his response on that subject to a single footnote." -
NYCL Responds to RIAA Accusations
NewYorkCountryLawyer writes "You may recall that when the RIAA decided to run away with its tail between its legs in the long running Brooklyn case against a home health aide who has never used a computer, UMG v. Lindor, it decided to take some parting shots at the defendant and NewYorkCountryLawyer, asking for 'discovery sanctions,' and blaming them for its inability to prove its case. Today NYCL gave them his response, accusing the RIAA lawyers of persistent misstatements of fact (PDF) throughout their motion papers, and of flouting the rules and misstating the law (PDF). Although the RIAA's motion papers took a number of shots at NYCL's copyright law blog, 'Recording Industry vs. The People,' NYCL confined his response on that subject to a single footnote." -
Judge Tells RIAA To Stop 'Bankrupting' Litigants
NewYorkCountryLawyer writes "The Boston judge who has consolidated all of the RIAA's Massachusetts cases into a single case over which she has been presiding for the past 5 years delivered something of a rebuke to the RIAA's lawyers, we have learned. At a conference this past June, the transcript of which (PDF) has just been released, Judge Nancy Gertner said to them that they 'have an ethical obligation to fully understand that they are fighting people without lawyers ... to understand that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it ...' She also acknowledged that 'there is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources,' while it is futile for self-represented defendants to resist. The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance,' and also stated that the law is 'overwhelmingly on the side of the record companies,' even though she seems to recognize that for the past 5 years she has been hearing only one side of the legal story." -
Oregon Judge Says RIAA Made 'Honest Mistake,' Allows Subpoena
NewYorkCountryLawyer writes "In Arista v. Does 1-17, the RIAA's case targeting students at the University of Oregon, the Oregon Attorney General's motion to quash the RIAA's subpoena — pending for about a year — has reached a perplexing conclusion. The Court agreed with the University that the subpoena, as worded, imposed an undue burden on the University by requiring it to produce 'sufficient information to identify alleged infringers,' which would have required the University to 'conduct an investigation,' but then allowed the RIAA to subpoena the identities of 'persons associated by dorm room occupancy or username with the 17 IP addresses listed' even though those people may be completely innocent. In his 8-page decision (PDF), the Judge also 'presumed' the RIAA lawyers' misrepresentations were an 'honest mistake,' made no reference at all to the fact, pointed out by the Attorney General, that the RIAA investigators (Safenet, formerly MediaSentry) were not licensed, rejected all of the AG's privacy arguments under both state and federal law, and rejected the AG's request for discovery into the RIAA's investigative tactics." -
J. K. Rowling Wins $6,750 In Infringement Case
NewYorkCountryLawyer writes "J. K. Rowling didn't make enough money on Harry Potter, so she had to make sure that the 'Harry Potter Lexicon' was shut down. After a trial in Manhattan in Warner Bros. v. RDR Books, she won, getting the judge to agree with her (and her friends at Warner Bros. Entertainment) that the 'Lexicon' did not qualify for fair use protection. In a 68-page decision (PDF) the judge concluded that the Lexicon did a little too much 'verbatim copying,' competed with Ms. Rowling's planned encyclopedia, and might compete with her exploitation of songs and poems from the Harry Potter books, although she never made any such claim in presenting her evidence. The judge awarded her $6,750 and granted her an injunction that would prevent the 'Lexicon' from seeing the light of day." Groklaw has an exhaustive discussion of the judgement. -
Case Against Video-Sharing Site Dismissed
NewYorkCountryLawyer writes "A California copyright infringement case brought by an adult video maker against a video sharing web site, Veoh Networks, has been thrown out, based upon the 'safe harbor' provision of the Digital Millennium Copyright Act ('DMCA'). In a 33-page decision (PDF), the Court concluded that Veoh was covered by the DMCA, and had carried out its duties to comply with takedown notices in a reasonable manner. The Court rejected the plaintiff's arguments showing possible ways that users could do an end-around, saying that the law requires 'reasonable' compliance, rather than perfection, and noted that the DMCA is 'designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age'." -
MediaSentry Defied Michigan Investigation For Months
NewYorkCountryLawyer writes "You may recall that MediaSentry, the RIAA's unlicensed investigator, has been the subject of an investigation by Michigan's Department of Labor and Economic Growth for its conduct of investigations without an investigator's license, an investigation in which it has made contradictory and false statements to the government's investigators. Well apparently this didn't deter MediaSentry from simply continuing its practice of conducting 'investigations' without a license. In Michigan, no less. We have learned from court papers (PDF) filed in Michigan that the practice continued for months after the DLEG had begun questioning the practice." -
RIAA 'Elektra V. Barker' Case Is Settled
NewYorkCountryLawyer writes "Elektra v. Barker, one of the leading cases repudiating the RIAA's 'making available' theory, has been settled. Unlike in most cases, the actual settlement agreement (PDF) is on file with the Court, and a matter of public record. Now Ms. Barker's attack on the constitutionality of the RIAA's damages theory, as well as her other defenses — including unclean hands based on MediaSentry's illegal behavior, the RIAA's inability to sue for statutory damages, and innocent infringement — will not be adjudicated, and it will fall on the shoulders of other defendants to carry the day on those issues. Ms. Barker, a young social worker who lives in the Bronx, once told p2pnet 'I love music. I grew up in a house where music was played all the time. We had milk crates filled with albums.... So to be sued for having music files on my computer is an insult. It's a slap in the face. This experience has left such a bad taste in my mouth that I wanted to swear off music.'" -
RIAA Foiled By "Innocent Infringement" Defense
NewYorkCountryLawyer writes "In an interesting development in a Texas case against a college-age defendant who was 16 at the time of the infringement, the Judge has denied the RIAA's summary judgment motion and ordered a trial of the damages — even though the defendant admitted copyright infringement using Kazaa — based on the 'innocent infringement' defense, which could reduce the statutory damages to $200 per song file. Relying on BMG v. Gonzalez (PDF), the reasoning of which I have criticized on the 'innocent infringement' issue, the RIAA argued that Ms. Harper does not qualify for the 'innocent infringement' defense, since CD versions of the songs, sold in stores, have copyright notices on them. In its 15-page decision (PDF) the Harper court rejected that contention, holding that 'a question remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting,' since 'In this case, there were no compact discs with warnings.' Finding that there was a factual issue as to what the defendant knew or didn't know at the time of the infringement, the Court ordered a trial of the damages unless the RIAA agrees to accept $200 — rather than the $750-plus it seeks — per infringed song." -
Tufts Tells Judge, We Can't Tie IP To MAC Addresses
NewYorkCountryLawyer writes "Protesting that Tufts University's DHCP-based systems 'were not designed to facilitate forensic examinations,' but rather to ensure 'smooth operations and to manage capacity issues,' the IT Office at Tufts University has responded to the subpoena in an RIAA case, Zomba v. Does 1-11, by submitting a report to the judge (PDF) explaining why it cannot cross-match IP addresses and MAC addresses, or identify users accurately. The IT office explained that the system identifies machines, not users; that some MAC addresses have multiple users; that only the Address Resolution Protocol system has even the potential to match IP addresses with MAC addresses, but that system could not do so accurately. For reasons which are unclear, the IT department then suggested that the RIAA next time send them 'notices to preserve information,' in response to which they would preserve, rather than overwrite, the DHCP data, for the RIAA's forensic benefit." -
RIAA Gets Nervous, Brings In Big Gun
NewYorkCountryLawyer writes "I guess the RIAA is getting nervous about the ability of its 'national law firm' (in charge of bringing 'ex parte' motions, securing default judgments, and beating up grandmothers and children) to handle the oral argument scheduled to be heard on Monday, August 4th in Duluth, in Capitol v. Thomas. So, at the eleventh hour, it has brought in one of its 'Big Guns' from Washington, D.C., a lawyer who argues United States Supreme Court cases like MGM v. Grokster to handle the argument. This is the case where a $222,000 verdict was awarded for downloading 24 songs, but the judge ultimately realized that he had been misled by the RIAA in issuing his jury instructions, and indicated he's probably going to order a new trial. But, not to worry. A group of 10 copyright law professors from 10 different law schools and several other amici curiae (friends of the court) have filed briefs now, so it is highly unlikely the judge will allow himself to be misled again, no matter who the RIAA brings in as cannon fodder on Monday." -
ABA Judges Get an Earful About RIAA Litigations
NewYorkCountryLawyer writes "I was afforded the opportunity to write for a slightly different audience — the judges who belong to the Judicial Division of the American Bar Association. I was invited by the The Judges Journal, their quarterly publication, to do a piece on the RIAA litigations for the ABA's Summer 2008 'Equal Access to Justice' issue. What I came up with was 'Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations,' in which I describe the unfairness of these cases and make 15 suggestions as to how the courts could level the playing field. I'm hoping the judges mod my article '+5 Insightful,' but I'd settle for '+3 Informative.' Here is the actual article (PDF). (If anyone out there can send me a decent HTML version of it, I'll run that one up the flagpole as well.)" Wired is helping to spread the word on Ray's article. -
ABA Judges Get an Earful About RIAA Litigations
NewYorkCountryLawyer writes "I was afforded the opportunity to write for a slightly different audience — the judges who belong to the Judicial Division of the American Bar Association. I was invited by the The Judges Journal, their quarterly publication, to do a piece on the RIAA litigations for the ABA's Summer 2008 'Equal Access to Justice' issue. What I came up with was 'Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations,' in which I describe the unfairness of these cases and make 15 suggestions as to how the courts could level the playing field. I'm hoping the judges mod my article '+5 Insightful,' but I'd settle for '+3 Informative.' Here is the actual article (PDF). (If anyone out there can send me a decent HTML version of it, I'll run that one up the flagpole as well.)" Wired is helping to spread the word on Ray's article.