Thursday, July 31, 2008

Issue has been joined in Capitol v. VideoEgg

The defendant VideoEgg has filed its answer in Capitol v. VideoEgg, asserting affirmative defenses, including the Digital Millenium Copyright Act, Fair Use, Copyright Misuse, Waiver, Estoppel, and Unclean Hands.

Answer of Defendant VideoEgg

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Wednesday, July 30, 2008

Judges Journal article now available in HTML format

A friend of our blog who wishes to remain anonymous has provided us with an HTML version of the Judges' Journal article:

Beckerman, Ray, "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations", The Judges' Journal, American Bar Association, Summer 2008 Edition (Reprinted by Permission of the copyright owner, The American Bar Association)

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

Epilogue to Judges' Journal Article

The article I wrote for the Judges' Journal was written primarily in March of this year.

In June I submitted a brief epilogue, specifically referring to the magazine's "Equal Access to Justice" theme, and reporting on some late breaking news. The Judges Journal didn't have room to add it in, but here it is:

New “access to justice” issues arise on a daily basis in these cases.

E.g., in the Capitol v. Thomas case in the District of Minnesota, which resulted in a $222,000 jury verdict, the defendant being represented by a reluctant attorney whose motion for leave to withdraw had been denied, the Judge has now issued an order to the effect that he believes he may set aside the verdict because he committed a “manifest error of law” by having submitted the case to the jury under an improper theory. He stated that both defendant’s lawyer and plaintiffs’ lawyers had failed to bring to his attention a controlling contrary 8th Circuit case. Needless to say, with the right kind of representation, defendant’s counsel would have mentioned the case, and the plaintiffs’ counsel’s duties as officers of the Court would not have been tested. “Judge in Capitol v. Thomas says "manifest error of law" may have been committed by incorrect "making available" instruction”, Recording Industry vs. The People, May 15, 2008.

In the Atlantic v. Andersen case in the District of Oregon, where the RIAA doggedly pursued an obviously innocent defendant for 3 years, ultimately throwing in the towel and being assessed with attorneys fees, the Magistrate Judge awarded only 2/3 of the lodestar, and declined any multiplier. Defendant explains in detail, in her reply declaration* in support of her attorneys fee motion, the difficulty she had experienced in finding a lawyer – any lawyer – to take her case, and argues, in her objections to the Magistrate Judge’s denial of a multiplier, that a multiplier is necessary to encourage lawyers to take on such “undesirable” representations. See defendant’s objections at pp. 7-8. “Parties file objections to Magistrate Judge's attorneys fee award in Atlantic v. Andersen”, Recording Industry vs. The People, May 30, 2008.

And the RIAA’s indiscriminate use of ex parte applications, and many Courts’ indiscriminate granting of such applications without meaningful inquiry into whether they are properly substantiated, continue. Fortunately, we occasionally learn of a court exercising a little bit more skepticism, as in the case of Magistrate Judge Margaret Kravchuk in the District of Maine in BMG v. Does 1-11, a “John Doe” case targeting University of Maine students. Judge Kravchuk had signed ex parte discovery orders on the first two go-arounds, but, when the third lawsuit was launched, apparently realized her mistake, observing, as she could have observed in the first two cases, and as every judge could just as well have observed in every one of the other cases targeting America’s colleges and universities, that “I see no reason for the court to take immediate action in this case as there is no evidence that records are about to be destroyed.” “RIAA brings third proceeding against University of Maine "John Does"; this time Court does not sign ex parte discovery order”, Recording Industry vs. The People, May 29, 2008.
Were I writing the epilogue today I would add this sentence to the last paragraph:
And in a North Carolina case targeting students at NC State, Magistrate Judge Louise W. Flanagan -- who confessed to having signed the ex parte orders in the past -- indicated she was now going to take a "fresh look", in Elektra v. Doe. "North Carolina court to take a "fresh look" at the NC State "John Doe" cases, issues stay of subpoena to NC State in Elektra v. Doe", Recording Industry vs. The People, July 4, 2008.




* Document published online at Internet Law & Regulation

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Tuesday, July 29, 2008

Tickets go on sale for "Stealing America" premier at Quad Cinema in New York City, August 1st to August 7th

For those of you in New York at any point between August 1st and 7th, and interested in (a) what happened in the 2004 election, and/or (b) good documentary film making, advance tickets for premier of "Stealing America : Vote by Vote", at the Quad Cinema in New York City, can now be purchased online at MovieTickets.com.


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ABA Judges' Journal Article: "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations"

The Judges' Journal, the quarterly publication of the Judicial Division of the American Bar Association, invited the author of this blog to write an article for its "Equal Access to Justice" edition.

I of course accepted the invitation, and submitted an article, entitled "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations". In it I describe the RIAA litigation process and the challenge it represents to our adversarial system of justice, and make 15 hopefully constructive suggestions as to how the Courts can help to level the playing field in these cases.

The article has now been published, and is available in the current edition of The Judges' Journal.

The ABA has graciously granted permission to reprint the article, for the benefit of those who are not recipients of The Judges' Journal.

Without further ado, here it is:

Beckerman, Ray, "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations", The Judges Journal, American Bar Association, Summer 2008 Edition (Reprinted by Permission of the copyright owner, The American Bar Association) (PDF)

HTML version

[Ed. note. Thanks to a friend of our blog, who wishes to remain anonymous, for supplying me with the HTML version. -R.B.]

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Monday, July 28, 2008

Final judgment entered in Atlantic v. Andersen

After about 3 years of litigation, final judgment has been entered in Atlantic v. Andersen, the Oregon case in which Tanya Andersen, represented by the Washington firm Lybeck Murphy, defeated the RIAA. The judgment awards Ms. Andersen $107,834 in attorneys fees.

July 28, 2008, Judgment


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Tenise Barker files answer to amended complaint in Elektra v. Barker

Tenise Barker has filed her answer to the amended complaint in Elektra v. Barker.

In her answer she admits that she was using Kazaa, denies some of the allegations of the amended complaint, and interposes the following affirmative defenses:

1. Plaintiffs' damages theory, which argues for statutory damages of from 2,142 to 428,571 times the actual damages, would lead to an unconstitutional result (Parker v. Time Warner Entertainment Co.,331 F.3d 13 (2d Cir. 2003); UMG Recordings, Inc. v. Lindor, 2006 WL 3335048 (E.D.N.Y. 2006); In re Napster Inc., 2005 WL 1287611 (N.D. California 2005)), so that the complaint should be construed as alleging that the use of an "online media distribution system" to infringe plaintiffs' copyrights constituted a single act of infringement, warranting a total recovery of $750 if defendant is liable.

2. In the alternative, the statute should be considered unconstitutional to the extent it could be construed as authorizing more than ten time the actual damages, and recovery should be limited to $3.50 per recording as against a single noncommercial user for a single upload or download of an MP3 file for personal use.

3. Unclean hands based upon plaintiffs' procurement of an unlicensed investigator, and commission of a Class B Misdemeanor under N.Y. General Business Law § 70, as well as unlawful pretexting and invasion of defendant's privacy.

4. Since the amended complaint makes no mention of any enumerated acts of infringement, but instead seeks recovery for a series of acts (the operation of an “online media distribution system” to infringe plaintiffs' copyrights), plaintiffs cannot recover statutory damages, costs, or attorneys fees for any sound recording copyrights registered with the U.S. Copyright Office subsequent to the date on which defendant first began using Kazaa, under 17 U.S.C. § 412. (See, e.g., Homkow v. Musika Records, Inc., 2008 U.S. Dist. LEXIS 14079 (S.D.N.Y. February 26, 2008); Irwin v. ZDF Enters. GmbH, 2006 U.S. Dist. LEXIS 6156 (S.D.N.Y. 2006); Shady Records, Inc. v. Source Enters., 2004 U.S. Dist. LEXIS 26143 (S.D.N.Y. 2004)).

5. Innocent infringement : defendant was not aware of any copyright infringement, and upon information and belief some or all of the copies which she downloaded did not bear copyright notice.
Answer to Amended Complaint
Notice of Constitutional Question

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Thursday, July 24, 2008

Memoranda of law in Arista v. Limewire

Plaintiffs finally did get around to filing a memorandum of law, four (4) days after the filing deadline, in Arista v. LimeWire.

Here are the copies of the memoranda of law I have been able to find:

Defendants' first memorandum of law
Defendants' second memorandum of law
Plaintiffs' memorandum of law




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Monday, July 21, 2008

Both sides move for summary judgment in Arista v. Limewire

Papers have been filed in Arista v. LimeWire which appear to be asking for summary judgment.

[Ed. note. We were unable to ascertain, from glancing at them, what the motions are all about. We were unable to find any memorandum of law from the plaintiffs, and the defendants filed two memoranda of law, one with all the substance "redacted". Accordingly, we have not prepared links to these papers, but have put many of the documents online for people who want to spend their time wading through them, in the following directory: http://beckermanlegal.com/Limewire/. However, I do not recommend that you do so. I regret the time and money I spent retrieving these from PACER. I have a hunch there won't be anything interesting until the trial. -R.B.]

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Thursday, July 17, 2008

Collection of testimony about not being able to 'detect an individual'

As most readers know, the RIAA has been fond of telling judges that their investigator "detected an individual", which was directly contradicted by the deposition testimony of its expert witness, Dr. Doug Jacobson, at his February 23, 2007, deposition in UMG v. Lindor.

I've prepared a collection of some excerpts from that deposition on that point:

Jacobson on Not Being Able to Detect Individuals

The full transcript of Dr. Jacobson's deposition is here.

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

Tuesday, July 15, 2008

Is it illegal for a toddler to dance to a copyrighted song?

Electronic Frontier Foundation Media Release

For Immediate Release: Tuesday, July 15, 2008

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org
+1 415 436-9333 x125

Friday Court Hearing in YouTube Video Battle

Home Movie of Toddler Dancing to Prince Sparks Bogus Copyright Claim

San Jose - On Friday, July 18, at 9 a.m., the Electronic Frontier Foundation (EFF) will urge a federal judge in San Jose to protect the free speech and fair use rights of mother who posted a home movie of her son dancing to Prince on YouTube.

EFF represents Stephanie Lenz, who uploaded a 29-second clip of her son dancing in the family kitchen to the Prince song, "Let's Go Crazy," which is playing on a stereo in the background. Remarkably, Universal Music Publishing Group claimed that the video infringed its copyrights, and had the video yanked from YouTube. Lenz's lawsuit against Universal seeks to hold the company accountable for misrepresenting that her fair use violated its copyrights.

In Friday's hearing, EFF will ask U.S. District Court Judge Jeremy Fogel to reject Universal's motion to dismiss the case, and allow Lenz's lawsuit to continue.

WHAT:
Lenz v. Universal

WHEN:
Friday, July 18
9 a.m.

WHERE:
U.S. District Court, Northern District of California Courtroom 3, 5th Floor 280 South 1st Street San Jose, CA 95113

For this release:
http://www.eff.org/press/archives/2008/07/15

About EFF

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/



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Monday, July 14, 2008

Tiffany's loses case against eBay

It's off topic for this blog, but I thought many of my readers would be interested in knowing that Tiffany's lost its trademark infringement case against eBay.

The court held that "it is the trademark owner's burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring on their websites".

July 14, 2008, Decision, Hon. Richard J. Sullivan

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