I share the Doe Defendants' concern over the absence of individualized allegations, but for a different reason. My concern has to do with the rules of joinder, see Rule 20(a), and whether it is appropriate for the Plaintiffs to join claims against disparate defendants concerning disparate (albeit similar) conduct, even if only for the purpose of gaining the authority to serve subpoenas to obtain the defendants' names and contact information. I assume they have done so in order to limit their filing fees and make their discovery work more manageable, but I am not convinced that it is proper. See, e.g., DirecTV, Inc. v. Adrian, 2004 U.S. Dist. LEXIS 8922, 2004 WL 1146122 (N.D. Ill. May 17, 2004) (involving claims that defendants separately pirated satellite TV services, without any allegation of concerted action, concluding that joinder was improper, and severing all but the first named defendant from the action). In particular, paragraph 20 of the complaint alleges that the claims against all defendants arise from the "same series of transactions or occurrences" because the Doe Defendants have the same ISP (the University of Maine) and all engaged in file-sharing over the Internet using that ISP. The complaint wants, however, any allegation of concerted conduct. The allegation that all of the claims arise from the same series of transactions or occurrences because all of the defendants used the same ISP sounds good, but makes little sense when one appreciates that having a common ISP says nothing about whether the use of that service by two or more people amounts to the same transaction or occurrence. Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. Separately, the Court may sever defendants sua sponte, pursuant to Rule 21, although dismissal of the action is not authorized. I appreciate that increased costs may redound to the defendants' detriment eventually, but it is difficult to ignore the kind of gamesmanship that is going on here with respect to joinder.
Suppose, instead of university students, the record companies chose to target all individuals within the District of Maine who had used these P2P services and had TimeWarner Cable for their ISP. Would all those individuals be properly joined in a single complaint? I think the Plaintiffs know the answer to that question because on May 5, 2007, many of these same plaintiffs filed a very similar lawsuit, Atlantic Recording Corp., et al. v. Does 1-22, 1:07-cv-057-JAW. A procedure similar to the one used in this case was adopted in that case, but no motions to dismiss or motions to quash were filed and presumably the plaintiffs obtained the discovery they sought. The case was voluntarily dismissed on July 16, 2007. Following that dismissal the same counsel filed at least three separate cases in this court: Atlantic Recording Corporation, et al. v. Anna Lenentine, 1:07-cv-133-JAW, on September 4, 2007 (still pending); Capitol Records Inc. v. Cara Laude, 2:07-cv-154-GZS, on September 4, 2007 (settled and dismissed on January 22, 2008); and Atlantic Recording Corp. v. Christopher Leavitt, 2:07-cv-156-DBH, on September 4, 2007 (voluntarily dismissed with prejudice on October 16, 2007). The relevant allegations in the respective complaints simply state that the defendants were "identified as the individual[s] responsible for that IP address at that date and hour" without reference to how the identification was made. However, there is certainly a "plausible inference" that the identifications were made as a result of the May lawsuit. It is curious that no attempt was made to join these cases as arising from the same transaction or occurrence if my plausible inference is accura
This section requires that the work must contain either the word "copyright" or the (c) symbol, followed by the year of publication and the name of the entity claiming the copyright. If the letter published on the Public Citizen website is complete, this information is missing. Incorrect. Notice has not been required since March 1, 1989, the effective date of the Berne Convention Implementation Act of 1988. This is shown in 17 USC 401(a) where the word "shall" was changed to "may":
17 U.S.C. 401(a) General Provisions.-- Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. There is still a notice requirement, however, for some works created or published before 1989.
Are you telling me that Yanni can, as the copyright holder, send me a C&D ordering me to destroy all copies of his albums?? No, U.S. copyright law does not grant that right to copyright holders. Once you buy a copyrighted work, you are free to resell or destroy it (unless the sale was actually a license, but that's different). Other countries do however allow a copyright owner to prevent you from doing certain things to works such as destroying or defacing artwork. That right is called a moral right. The U.S. has a very limited version of that kind of law and it applies in very limited circumstances such as limited signed copies of a painting. I think it has to be something like less than 100 copies made but it's been a little while since I read that clause in the statute. I believe it is 17 USC 106A if you want to look it up.
The clause is a preamble, explaining the reasoning behind the amendment, not restricting it. But that's a common mistake. Don't be fooled. People who try to make that point are not doing it by mistake.
Not at all- the 2nd amendment specifically says "well regulated militia". Nice try but you forgot the second half of the sentence: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."
Reasonable restrictions on speech is allowed even by state and federal government. For example, the school in the "Bong hits for Jesus" case was free to punish that kid who was allegedly disruptive to the school's activities.
I was simply responding to the statement that contributory and vicarious liability have no support in the statute. The OP was correct in stating that they are court made doctrines but Congress was aware of them when it was drafting the '78 Act. The legislative history further states that a "well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers."
And yes, it would make no sense to hold one liable for copyright infringement when no infringement actually took place (or is proven). That is the result the RIAA is seeking and it was the result in the Hotaling case.
Actually contributory and vicarious liability has full support in 17 USC 106 where it says it is unlawful "to do and to authorize any of the following"
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Furthermore, the legislative history supports this construction of the statute in which Congress stated: "Use of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers."
In contrast, however, there is nothing in the statute or the legislative history that suggests that the making available should be infringement. It is one reading of the statute from a case in the 4th Circuit and the opinion itself was meant to be limited to libraries. (at least how I read it)
Who are these people in charge of granting patents who get suckered into thinking this is a unique, tangible product? This patent has not been granted yet. It's only an application at this point.
Obviously you should not advise a client to patent an invention that is illegal to use. I'm not convinced by your immorality argument, however. Courts haven't used that doctrine for close to 100 years. Juicy Whip is on point and is the leading case taught on this issue to patent law students.
n late November, the Supreme Court heard oral arguments in KSR v. Teleflex -- the case that will determine what constitutes a "nonobvious" invention. We should have a ruling in the next two months. Am I missing something? Did this case go back to the Supreme Court? This was heard November 2006 and the decision was released in the spring of 2007. You aren't a lawyer are you?
Can't patent sex toys - not patentable subject matter. If you are a patent attorney, I hope you don't give this advice to your clients. I suggest you read the recent Juicy Whip case. This will get you started.
The PTO is not authorized to determine whether an invention is "immoral."
It depends on how the law is written. If it says "intentionally shined the laser at the aircraft" then yes they will have to prove intent. It could also say "knowingly shine at the aircraft" in which only knowledge would be required or just "anyone who shines a laser at an aircraft" in which case probably neither intent nor knowledge are required.
No no no. It completely depends on the statute. There are plenty of laws that only require knowledge and there are even strict liability laws that do not require any knowledge of the illegal activity taking place. Violating them can land you in jail. Gross negligence can also land you in jail.
Awesome! I can listen to TWO Nickelback songs at the same time!!:D If you just play one Nickelback song you are basically listening to their full discography in under 4 minutes.
That's about right. Except that the contract between the "artist" (better known as "performer") gives the record label just about 100% of the royalty. The performer most likely gets nothing.
Before the subpoena, it is fine, while after the subpoena has been served, it is destruction of evidence. Actually it can be even before a subpoena is served on you. If you feel there is a high likelihood of litigation, you are then required to save evidence.
Why is it specifically in favour of 'Big' media companies? What is it that prevents this also helping out small media companies, and even individuals who create copyrighted works? You think it's gonna be free to use these "cops"??
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I share the Doe Defendants' concern over the absence of individualized allegations, but for a different reason. My concern has to do with the rules of joinder, see Rule 20(a), and whether it is appropriate for the Plaintiffs to join claims against disparate defendants concerning disparate (albeit similar) conduct, even if only for the purpose of gaining the authority to serve subpoenas to obtain the defendants' names and contact information. I assume they have done so in order to limit their filing fees and make their discovery work more manageable, but I am not convinced that it is proper. See, e.g., DirecTV, Inc. v. Adrian, 2004 U.S. Dist. LEXIS 8922, 2004 WL 1146122 (N.D. Ill. May 17, 2004) (involving claims that defendants separately pirated satellite TV services, without any allegation of concerted action, concluding that joinder was improper, and severing all but the first named defendant from the action). In particular, paragraph 20 of the complaint alleges that the claims against all defendants arise from the "same series of transactions or occurrences" because the Doe Defendants have the same ISP (the University of Maine) and all engaged in file-sharing over the Internet using that ISP. The complaint wants, however, any allegation of concerted conduct. The allegation that all of the claims arise from the same series of transactions or occurrences because all of the defendants used the same ISP sounds good, but makes little sense when one appreciates that having a common ISP says nothing about whether the use of that service by two or more people amounts to the same transaction or occurrence. Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. Separately, the Court may sever defendants sua sponte, pursuant to Rule 21, although dismissal of the action is not authorized. I appreciate that increased costs may redound to the defendants' detriment eventually, but it is difficult to ignore the kind of gamesmanship that is going on here with respect to joinder. Suppose, instead of university students, the record companies chose to target all individuals within the District of Maine who had used these P2P services and had TimeWarner Cable for their ISP. Would all those individuals be properly joined in a single complaint? I think the Plaintiffs know the answer to that question because on May 5, 2007, many of these same plaintiffs filed a very similar lawsuit, Atlantic Recording Corp., et al. v. Does 1-22, 1:07-cv-057-JAW. A procedure similar to the one used in this case was adopted in that case, but no motions to dismiss or motions to quash were filed and presumably the plaintiffs obtained the discovery they sought. The case was voluntarily dismissed on July 16, 2007. Following that dismissal the same counsel filed at least three separate cases in this court: Atlantic Recording Corporation, et al. v. Anna Lenentine, 1:07-cv-133-JAW, on September 4, 2007 (still pending); Capitol Records Inc. v. Cara Laude, 2:07-cv-154-GZS, on September 4, 2007 (settled and dismissed on January 22, 2008); and Atlantic Recording Corp. v. Christopher Leavitt, 2:07-cv-156-DBH, on September 4, 2007 (voluntarily dismissed with prejudice on October 16, 2007). The relevant allegations in the respective complaints simply state that the defendants were "identified as the individual[s] responsible for that IP address at that date and hour" without reference to how the identification was made. However, there is certainly a "plausible inference" that the identifications were made as a result of the May lawsuit. It is curious that no attempt was made to join these cases as arising from the same transaction or occurrence if my plausible inference is accura
Many of the users of autoadmit do use Tor now. Threads about it pop up every now and then.
oh crap. I read his comment wrong. it's late. forgive me.
Reasonable restrictions on speech is allowed even by state and federal government. For example, the school in the "Bong hits for Jesus" case was free to punish that kid who was allegedly disruptive to the school's activities.
WHHOOOSSHHHH!!!!!
They've applied for this patent. It has not granted yet. Seems like a small point but it isn't.
You act as if getting customers to sign an NDA is a walk in the park. Unless your product is in high demand, good luck with that buddy.
I was simply responding to the statement that contributory and vicarious liability have no support in the statute. The OP was correct in stating that they are court made doctrines but Congress was aware of them when it was drafting the '78 Act. The legislative history further states that a "well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers."
And yes, it would make no sense to hold one liable for copyright infringement when no infringement actually took place (or is proven). That is the result the RIAA is seeking and it was the result in the Hotaling case.
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Furthermore, the legislative history supports this construction of the statute in which Congress stated: "Use of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers."
In contrast, however, there is nothing in the statute or the legislative history that suggests that the making available should be infringement. It is one reading of the statute from a case in the 4th Circuit and the opinion itself was meant to be limited to libraries. (at least how I read it)
Obviously you should not advise a client to patent an invention that is illegal to use. I'm not convinced by your immorality argument, however. Courts haven't used that doctrine for close to 100 years. Juicy Whip is on point and is the leading case taught on this issue to patent law students.
The PTO is not authorized to determine whether an invention is "immoral."
Also see this patent and this patent.
If something is presented as factual then it is considered factual as far as copyright law is concerned.
It depends on how the law is written. If it says "intentionally shined the laser at the aircraft" then yes they will have to prove intent. It could also say "knowingly shine at the aircraft" in which only knowledge would be required or just "anyone who shines a laser at an aircraft" in which case probably neither intent nor knowledge are required.
No no no. It completely depends on the statute. There are plenty of laws that only require knowledge and there are even strict liability laws that do not require any knowledge of the illegal activity taking place. Violating them can land you in jail. Gross negligence can also land you in jail.
That's about right. Except that the contract between the "artist" (better known as "performer") gives the record label just about 100% of the royalty. The performer most likely gets nothing.
IAALStudent