Wednesday, February 27, 2008

David Pogue RIAA video on YouTube

Thought my readers might enjoy this performance by David Pogue.




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Excellent article on Arizona cases in the Tucson Weekly

Great article in the Tuscon Weekly, on Arizona cases:

Thank You for Not Sharing

Arizonans are being forced to defend themselves against high-dollar illegal-music lawsuits filed by the Recording Industry Association of America

By MARI HERRERAS

Deborah Weed would rather not be talking to a reporter or having her photo taken. The single mother would rather be focusing on her family, which she supports by working for a Phoenix construction company, surviving paycheck to paycheck.

Weed says she'd prefer to enjoy time with her daughter and granddaughter. Instead, much of her time is dedicated to a legal fight with the Recording Industry Association of America (RIAA).

In 2005, Weed and about 30,000 other Americans became part of what the RIAA calls its "tough-love" campaign, targeting music lovers who have allegedly shared or downloaded music illegally using the Internet.
Complete article



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University of San Francisco School of Law, IP Law Clinic, comes to aid of lawyers defending RIAA victims

In what is believed to be a first, the University of San Francisco School of Law's Intellectual Property Law Clinic has come to the aid of lawyers representing RIAA defendants.

Law students in the program, working under the supervision of law professors, are assisting outside lawyers representing the victims of RIAA suits on a pro bono basis.

Earlier this week, a brief was served in Maverick v. Chowdhury, a Brooklyn case in which the defendant is represented by Vandenberg & Feliu, in which two law students from the program assisted.

Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion to Dismiss Counterclaims (Maverick v. Chowdhury)*

* Document published online at Internet Law & Regulation

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Defendants file opposition to RIAA motions to dismiss counterclaims in Elektra v. Torres and Maverick v. Chowdhury

In Maverick v. Chowdhury and Elektra v. Torres, two Brooklyn cases in which the RIAA has moved to dismiss their counterclaims, the defendants have served their opposition papers to the RIAA motions.

Defendant's Memorandum of Law in Opposition to RIAA Motion to Dismiss Counterclaims (Maverick v. Chowdhury*
Defendant's Memorandum of Law in Opposition to RIAA Motion to Dismiss Counterclaims (Elektra v. Torres)*

* Document published online at Internet Law & Regulation



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RIAA says it will file motion for reconsideration in Connecticut default judgment case, Atlantic v. Brennan

In Elektra v. Schwartz, the RIAA wrote to Judge Trager, bringing to his attention the recent decision in the Northern Michigan University case, LaFace v. Does 1-5. In their letter, the RIAA's lawyers indicated that they are planning to file a reconsideration motion in Atlantic v. Brennan.

February 27, 2008, Letter of Richard L. Gabriel (referring to LaFace v. Does 1-5 and Atlantic v. Brennan)*

* Document published online at Internet Law & Regulation



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Judge denies John Does' motion to dismiss and to quash in Northern Michigan University case

In LaFace v. Does 1-5, the case targeting 5 Northern Michigan University students, the judge has denied the defendants' motion to dismiss the complaint and quash the subpoena.

February 22, 2008, order denying motion to dismiss and to quash*

* Document published online at Internet Law & Regulation



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Judge in Raleigh, NC, case, LaFace v. Does 1-38, follows Maine decision by Magistrate, dismisses for improper joinder, but upholds complaint

In LaFace v. Does 1-38, the Raleigh, North Carolina, case targeting 38 North Carolina State University students, District Judge W. Earl Britt basically followed the recent decision by a Magistrate Judge in Arista v. Does 1-27, the case against University of Maine students.

In the Maine case the students had moved to dismiss the complaint for failure to state a claim. They did not attack the subpoena or ex parte discovery order, and did not move to dismiss for misjoinder. The Magistrate upheld the RIAA's boilerplate complaint, but raised the issue of improper joinder, and even recommended to the District Judge that the Court consider imposing Rule 11 sanctions against the plaintiffs and/or their attorneys for making false statement to justify joinder.

In the North Carolina case, the NC State students attacked everything, the subpoena, the underlying ex parte order, and the complaint, and moved to dismiss for misjoinder. Judge Britt, following the reasoning of the Maine Magistrate Judge, (a) upheld the complaint, but (b) dismissed as to all but one of the John Does, for misjoinder, and ruled that the RIAA had to re-file separate cases for each of them.

February 27, 2008, Decision Dismissing for Misjoinder* (2008 WL 544992)

* Document published online at Internet Law & Regulation

Commentary & discussion:

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List of quotations

Quotations
From sidebar of "Recording Industry vs. The People" by Ray Beckerman
(Published also at http://info.riaalawsuits.us/quotations.htm)


"“[W]ithout actual distribution of copies.... there is no violation [of] the distribution right.” 4 William F. Patry, Patry on Copyright § 13:9 (2007); see also id. N. 10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)(affirming the district court’s finding “that distribution requires an ‘actual dissemination’ of a copy”)".
-Hon. Janet Bond Arterton
District Judge
District of Connecticut
February 13, 2008
Atlantic v. Brennan
-- F.Supp.2d --, 2008 WL 445819

"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero
District Judge
Central District of California
March 2, 2007
Elektra v. O'Brien

"Plaintiff ... must present at least some facts to show the plausibility of their allegations of copyright infringement....However, .... Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation."
-Hon. Rudi M. Brewster
Senior District Judge
Southern District of California
August 17, 2007
Interscope v. Rodriguez

2007 WL 2408484

"[I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme..., but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined."
-Hon. Margaret J. Kravchuk
Magistrate Judge
District of Maine
January 25, 2008
Arista v. Does 1-27
2008 WL 222283

"If this were to become a more typical course in prosecuting the type of allegations faced by defendant, it is reasonably foreseeable that members of the public would be more hesitant to use the Internet to share creative works in general, regardless of whether their specific conduct violated copyright law or occupied an area yet to be addressed by copyright law. Copyright holders generally, and these plaintiffs specifically, should be deterred from prosecuting infringement claims as plaintiffs did in this case. "
-Hon. Donald C. Ashmanskas
Magistrate Judge
District of Oregon
September 21, 2007
Atlantic v. Andersen
2008 WL 185806

"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks
-Hon. Lee Yeakel
District Judges
Western District of Texas
November 17, 2004
Fonovisa v. Does 1-41

"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse."
-Hon. S. James Otero
Central District of California
August 29, 2007
SONY BMG v. Does 1-5

"[N]either Florida’s litigation privilege nor the Noerr-Pennington Doctrine serves as a shield for sham litigation."
-Hon. Richard A. Lazzara
District Judge
Middle District of Florida
September 19, 2007
UMG v. Del Cid

"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer."
-Hon. Lee R. West
District Judge
Western District of Oklahoma
February 6, 2007
Capitol v. Foster
2007 WL 1028532

"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr.
District Judge
Eastern District of Virginia
July 12, 2007
Interscope v. Does 1-7
494 F. Supp. 2d 388

"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian “suspension of disbelief” to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member’s Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia
Magistrate Judge
District of New Mexico
May 24, 2007
Capitol v. Does 1-16
2007 WL 1893603

"[T]he inducement rule.... is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.....One infringes contributorily by intentionally inducing or encouraging direct infringement...."
-Hon. David H. Souter, for the Court
Justice
U.S. Supreme Court
June 27, 2005
MGM v. Grokster
545 U.S. 913

"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."
-Hon. David G. Trager
Senior District Judge
Eastern District of New York
November 9, 2006
UMG v. Lindor
2006 WL 3335048

"[D]istributing unlawful copies of a copyrighted work does violate the copyright owner's distribution right and, as a result, constitutes copyright infringement. In order to establish "distribution" of a copyrighted work, a party must show that an unlawful copy was disseminated "to the public." 17 U.S.C. § 106(3); see National Car Rental v. Computer Associates , 991 F.2d 426, 434 (8th Cir. 1993); 2 Nimmer, § 8.11[A] at 8-137."
-Hon. John D. Butzner, Jr.
Fourth Circuit
June 30, 1997
Hotaling v. Church of Jesus Christ of Latter-Day Saints
118 F.3d 199

*Printable list of above quotations



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RIAA & MediaSentry oppose MediaSentry responding to subpoena in UMG v. Lindor

In UMG v. Lindor, the RIAA and MediaSentry have both filed papers opposing Ms. Lindor's motion to compel MediaSentry to answer the subpoena that was served upon it.

February 27, 2008, Letter of Thomas M. Mullaney to Hon. Robert M. Levy (opposing motion to compel MediaSentry to answer subpoena)*
February 27, 2008, Letter of Richard Gabriel to Hon. Robert M. Levy (opposing motion to compel MediaSentry to answer subpoena)*

* Document published online at Internet Law & Regulation




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To contribute to Marie Lindor's legal defense, see below.

















The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.




Tuesday, February 26, 2008

John Does file reply brief in Arista v. Does 1-21 in Boston

In the Boston University "John Doe" case, Arista v. Does 1-21, the defendant John Does have filed a reply brief responding the RIAA's supplemental opposition memo.

Reply memorandum of law of "John Does"*

* Document published online at Internet Law & Regulation



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