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Recording Industry vs The People

Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.

Updated: 2018-04-19T23:47:23.215-04:00


Stipulated preservation order in Malibu v Doe 16 cv 1325 SDNY


After some negotiation, the parties entered into a stipulated preservation order in Malibu Media v. Doe, a Southern District of New York case:
January 27, 2017, Stipulated Preservation Order, Hon. Jesse M. Furman, District Judge

Judge Locke denies motion to quash in Malibu Media v Doe, stay lifted


In Malibu Media v. Doe, EDNY 15-3504, Judge Locke has denied the defendant's motion to quash, and lifted the stay on all of the EDNY Malibu Media cases, which had all been consolidated.

The Court accepted the representations of plaintiff's expert, a Michael Patzer of a company called Excipio, that Malibu relies on "direct detection" rather than "indirect detection", and that it is "not possible" for there to be misidentification.

Memorandum Decision of Magistrate Judge Locke denying motion to quash

Second Circuit rules for Vimeo on DMCA issues in Capitol Records v Vimeo


The US Court of Appeals for the Second Circuit has overturned those parts of the District Court's rulings which were in favor of the plaintiff record companies in Capitol Records v. Vimeo.

The Court decided three major issues under the Digital Millenium Copyright Act.

1. It totally rejected the 2011 report of the US Copyright Office, upon which the District Court had relied, which had concluded that pre-1972 recordings are not subject to the DMCA. The Court went into great detail as to the Copyright Office's errors in interpreting the Copyright Act.

2. It overturned the District Court's ruling that wherever the plaintiff could show that a Vimeo employee had at least partially viewed the infringing video, there was a factual issue on the subject of "red flag knowledge", therefore precluding summary judgment. The Court held that this was not itself a sufficient basis to require a trial, and remanded this issue to the District Court to reconsider it.

3. The Court affirmed the District Court's rejection of plaintiffs' argument that Vimeo had adopted a "policy" of willful blindness, reiterating the principle that willful blindness, like actual knowledge, must relate to specific infringements. The court also noted that plaintiff's evidence that such a "policy" had been adopted, consisting of a "handful of sporadic instances", did not rise to the level of showing such a policy.

Decision of US Court of Appeals, 2nd Circuit, June 16, 2016

Commentary & discussion:

Ars Technica
Deep Links Blog (Electronic Frontier Foundation)

All EDNY subpoenas stayed by Judge Locke, due to "serious questions" raised by motion to quash


A motion to quash was made by one of the many John Doe defendants in the Eastern District of New York Malibu Media cases.

The defendant was represented by Chejin Park, Esq., of Flushing.

Due to the "serious questions as to whether good cause exists in these actions to permit ... expedited pre-answer discovery", the Court, by Magistrate Judge Steven I. Locke, before whom all of the Eastern District cases are consolidated, decided to stay all pre-answer discovery until his determination of the motion to quash.

Motion to quash
October 6, 2015, Order of Magistrate Judge Steven I. Locke

Commentary & discussion:


Judge Hellerstein denies Malibu Media discovery motion


In a recent decision in the Southern District of New York in Manhattan, in Malibu Media v. Doe, 15 CV 4369 AKH, Judge Alvin K. Hellerstein has denied Malibu Media's ex parte motion for permission to serve a subpoena on the internet service provider.July 6, 2015, Decision of Hon. Alvin K. Hellerstein, denying ex parte motion for discoveryJudge Hellerstein reasoned as follows:First, it is doubtful whether Malibu has in fact established a prima facie claim here. A prima facie copyright infringement claim consists of two elements: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc. 499 U.S. 3400, 361 (1991). As Judge Marrero observed in Next Phase Distribution, Inc. v. John Does 1-27, 284 F.R.D. 165, 171 (S.D.N.Y. 2012), “if the Motion Picture is considered obscene, it may not be eligible for copyright protection.” Further, even if Malibu’s copyrights are valid, Malibu has not established a violation by the individual to whom the relevant IP address is registered. As Judge Oetken explains, [t]he fact that a copyrighted work was illegally downloaded from a certain IP address does not necessarily mean that the owner of that IP address was the infringer. Indeed, the true infringer could just as easily be a third party who had access to the internet connection, such as a son or daughter, houseguest, neighbor, or customer of a business offering internet connection. Patrick Collin[s], Inc. v. Does 1-6, No. 12-cv-2964, 2012 WL 2001957, at *1 (S.D.N.Y. June 1, 2012) (internal citations omitted); see also In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 84 (E.D.N.Y. 2012) (“[T]he assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time.”); Digital Sin, Inc. v. John Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012) (Judge Nathan finding that approximately 30% of John Does identified by their internet service providers are not the individuals who actually downloaded the allegedly infringing films). The risk of misidentification is great in a world with ubiquitous Wi-Fi, and given courts’ concerns that these sorts of allegations - especially by this plaintiff - are likely to coerce even innocent defendants into settling, the risk of misidentification is important to protect against. And even if Plaintiff could definitively trace the BitTorrent activity in question to the IP-registrant, Malibu conspicuously fails to present any evidence that John Doe either uploaded, downloaded, or even possessed a complete copyrighted video file. (See Compl. i1 24 ("IPP International UG downloaded from Defendant one or more bits of each file hash listed on Exhibit A.") (emphasis added); Fieser Deel. i115 ("Our software downloaded one or more bits of each file hash listed on Exhibit A from the IP address referenced on Exhibit A.")). Another district court has noted that [i]ndividual BitTorrent file pieces are worthless ... If it is the case that a Doe Defendant logged onto the BitTorrent swarm, downloaded and then uploaded a single piece to the IPP server, and then logged off, all he has done is transmit an unusable fragment of the copyrighted work. ... [T]he Court notes that Malibu's case is weak if all it can prove is that the Doe Defendants transmitted only part of all the BitT orrent pieces of the copyrighted work.Malibu Media, LLC v. John Does 1-10, No. 12-cv-3623, 2012 WL 5382304, at *3 (C.D. Cal. June 27, 2012). Finally, Plaintiffs assertion that there is no alternative means of obtaining the desired information is inadequate. The only support for it comes from the declaration of Patrick Paige who, as Magistrate Judge Fox found in a different case, lacks personal knowledge of the methodology used by ISPs to match the IP address with its registra[...]

UMG v Grooveshark settled. No money judgment against individual defendants


UMG v. Escape Media, UMG's case against Grooveshark, has been settled just prior to trial.

Under the terms of the settlement a judgment for $50,000,000.00 will be entered against the corporation only, and the corporation will shut down its operations.

No money judgment is being entered against the individual defendants.

Stipulation and Consent Judgment and Permanent Injunction Entered May 1, 2015

Parameters set for statutory damages trial in UMG v Grooveshark


In UMG v. Escape Media, UMG's case against the Grooveshark founders, the judge has rendered a decision setting some of the parameters for the statutory damages trial scheduled to begin next Monday. The jury will be instructed that the maximum statutory damages is $150,000, not $30,000, per infringed work, due to the fact that the infringements were willful, but the parties will be able to introduce evidence on the degree of willfulness. Since there are 4907 works, that means the minimum damages that can be awarded is $3,680,250.00, and the maximum could be $736,050,000.00.

April 23, 2015, Decision, Ruling on In Limine Motions

Commentary & discussion:

"Grooveshark Faces a $736,050,000.00 Hammer…" (Digital Music News)
"Grooveshark Could be Fined $730 Million for Universal Music Group Lawsuit Damages" (Music Times)

Capitol Records has spent over $12 million in attorneys fees in Capitol v. MP3Tunes


In Capitol Records v. MP3Tunes, a recent decision partially granting plaintiff's attorneys fees motion, indicated that plaintiff has spent over $12 million in attorneys fees... so far.

April 3, 2015, Decision

[Ed. note. Is it just me, or don't you have to wonder where they got that money from?]

Arista v Grooveshark trial set to begin April 27th


A trial date has been set in one of the Grooveshark cases, Arista v. Escape Media. The trial will begin Monday, April 27th, in the courtroom of Judge Thomas P. Griesa, room 26B, at the federal courthouse, 500 Pearl Street, New York, New York

April 1, 2015, Order setting April 27th trial date

Aereo files for bankruptcy


Well, it finally happened; Aereo has given up the ghost and filed for bankruptcy. It will be interesting to see whether the the content cartel will be satisfied at having put the company out of business, or will instead look for blood.

March 27, 2015, Order, WNET v. Aereo

Individual defendants found liable in Grooveshark case


In UMG Escape Media, the Court has granted summary judgment finding the individual defendants to be liable for copyright infringement.

September 29, 2014, decision granting summary judgment against individual defendants

New ruling in Capitol v MP3Tunes, reduces punitive damages, denies Robertson motion for new trial


In Capitol Records v. MP3Tunes, the Judge has denied individual defendant Michael Robertson's motion for a new trial, but reduced the punitive damages award on the state law claims for pre-1972 recordings.

September 29, 2014, Decision, denying motion for new trial, and reducing punitive damages

2nd Circuit OK's scanning whole books for research as fair use in Authors Guild v HathiTrust


In Authors Guild v. HathiTrust, the US Court of Appeals has ruled that scanning whole books for research purposes is fair use.

In HathiTrust, a group of universities took digital scans prepared by Google and stored them in a "digital library".

The library permitted 3 uses of the material:
(1) The public was allowed to search by keyword. The search results showed only the page numbers for the search term and the number of times it appeared; none of the text was visible.
(2) People with disabilities which prevented them from holding books and/or turning pages could be provided access to the full texts.
(3) Members could create a replacement copy of a lost, stolen, or destroyed book if a replacement was not obtainable in the market at a "fair" price.

The Court held the search function to be a fair use, finding that
-the creation of a searchable, full text database is a "quintessentially transformative use";
-it was "reasonably necessary" to make use of the entire works, and to maintain 4 copies of the database;
-the library did not impair the market for the works.

The Court likewise found it to be a fair use to make copies available to the disabled who are unable to access print books.

The Court declined to rule on the replacement book issue, on the ground that the plaintiffs lacked standing to raise that question.

June 10, 2014, Decision, US Court of Appeals, 2nd Circuit

Viacom v Google settled out of court (old news)


I just found out about this today, thanks to an old tweet by Bill Rosenblatt H/T Bill.

Viacom v. YouTube has been settled out of court.

DC Circuit rules no multiple John Doe cases without basis for personal jurisdiction and joinder


In the first appellate decision of its kind, the D. C. Circuit Court of Appeals has dealt a death knell to the type of mass John Doe fishing expedition cases pioneered by the RIAA and carried on by pornographic filmmakers and other high volume plaintiffs seeking the identity of possible defendants.

In AF Holdings v. Does 1-1058, the appeals court overruled the district court's grant of ex parte discovery, ruling that mass John Doe cases could not be brought where there was no known basis for the assertion of personal jurisdiction over the unknown defendants, and on alternative grounds that there could be no joinder merely because defendants allegedly downloaded the same file through BitTorrent and therefore possibly in the same "swarm".

(Ed. note: A cynic might argue that the key difference in this case was that, for a change, the ISP's, and not merely defendants, were challenging the subpoenas; but of course we all know that justice is 'blind'. An ingrate might bemoan the Court's failure to address the key underlying fallacy in the "John Doe" cases, that because someone pays the bill for an internet account that automatically makes them a copyright infringer; but who's complaining over that slight omission? A malcontent like myself might be a little unhappy that it took the courts ten (10) years to finally come to grips with the personal jurisdiction issue, which would have been obvious to 9 out of 10 second year law students from the get go, and I personally have been pointing it out and writing about it since 2005; but at least they finally did get there. And a philosopher might wonder how much suffering might have been spared had the courts followed the law back in 2004 when the John Doe madness started; but of course I'm a lawyer, not a philosopher. :) Bottom line, though: this is a good thing, a very good thing. Ten (10) years late in coming, but good nonetheless. - R.B. )

May 27, 2014, Opinion, US Court of Appeals, DC Circuit

Class action claim against Harlequin Books for e-book royalties upheld by 2nd Circuit


In Keiler v. Harlequin Enterprises, a class action royalty claim on behalf of authors whose works were being distributed as e-books by Harlequin was sustained, and the lower court's dismissal of the complaint reversed.

The complaint alleged that Harlan, in a scheme to deprive the authors of their contractual royalties for e-books, had established a subsidiary, was paying royalties to the subsidiary at a below-market rate, and was paying the authors based on the low receipts of the subsidiary rather than on the actual receipts of Harlan itself.

May 1, 2014, US Court of Appeals for 2nd Circuit

Second Circuit permits interlocutory appeal in Capitol Records v. Vimeo


In Capitol Records v. Vimeo, the Second Circuit has granted both sides' motions for leave to file an interlocutory appeal from the lower court's decision partially granting both sides' motions for summary judgment.

April 9, 2014, Order granting motions for interlocutory appeal, US Court of Appeals, 2nd Circuit

Excellent comment by Andrew Bridges on proposed "making available" right


Andrew Bridges is the fine California attorney who wrote one of the great amicus curiae briefs in Elektra v. Barker, and also wrote an excellent request to file amicus curiae brief in Capitol Records v. ReDigi.

Recently, he submitted this outstanding comment to the Copyright Office on the subject of "making available".

Response of Andrew P. Bridges to the Request for Comments for the Study on the Right of “Making Available.”

"Florida Judge dismisses a Malibu case because Lipscomb failed to establish a connection between an IP address and person" ~ @FightCopyTrolls


Good article on the Fight Copyright Trolls website:
Florida Judge dismisses a Malibu case because Lipscomb failed to establish a connection between an IP address and person
We saw it coming: in less than two months in the Southern District of Florida, a venue where copyright troll Keith Lipscomb’s command and control is located,

Judge Federico Moreno ruled that there is no “good cause” to deviate from Rule 26(d), thus denying early discovery in Malibu Media v. John Doe, 14-cv-20216;

Magistrate Frank Lynch also denied Lipscomb’s motion for ex-parte discovery citing untimely copyright registrations in Malibu Media v. John Doe, 13-cv-14458;

Magistrate Andrea Simonton recommended to sanction Lipscomb in Malibu Media v. Pelizzo, 12-cv-22768;

Judge Ursula Ungaro denied Lipscomb’s routine motion for extension of time to serve the defendant and closed Malibu Media v. John Doe, 13-cv-23714.

In the latter case, on 10/29/2013 the judge sua sponte ordered to show cause why the Court may reasonably rely upon the Malibu’s usage of geolocation to establish the identity of the defendant (and also establish that the defendant may be found within this district).

Lipscomb responded on 11/12/2013, and apparently satisfied Magistrate Torres, to whom Judge Ungaro referred the case. As already mentioned, the case was closed not because of the OSC outcome, but for failure to serve the defendant.

Fast forward to March 2014. On 3/5/2014 in Malibu Media v Doe (FLSD 14-cv-20213), an identical order to show cause was issued by Judge Ursula Ungaro. Lipscomb replied, but this time he was not so lucky: .....

Complete article

Ex-MP3tunes chief held liable in music copyright case ~ Reuters


Reuters reports:

Ex-MP3tunes chief held liable in music copyright case
By Nate Raymond

(Reuters) - The former chief executive of bankrupt online music storage firm MP3tunes was found liable Wednesday for infringing copyrights for sound recordings, compositions and cover art owned by record companies and music publishers once part of EMI Group Ltd.

A federal jury in Manhattan found Michael Robertson, the former MP3tunes chief executive, and the defunct San Diego-based company liable on various claims that they infringed on copyrights associated with artists including The Beatles, Coldplay and David Bowie.

The jurors also found MP3tunes was willfully blind to copyright infringement on its website, in what a lawyer for the recording companies suggested before the verdict would be the first ruling by a jury of its kind.
Complete article

Plaintiffs withdraw their appeal in Viacom v. YouTube


Plaintiffs have withdrawn their appeal from the lower court's grant of summary judgment to YouTube in Viacom v. YouTube

My article on Authors Guild v Google, in e-commerce law reports


Here's my article on Authors Guild v. Google, which appeared at pages 14-15 of Volume 14, Issue 1, of e-commerce law reports (reprinted with permission)

Authors Guild v Google

"Why YouTube's Automated Copyright Takedown System Hurts Artists" ~ TorrentFreak


Interesting article by Ben Jones at TorrentFreak:

Why YouTube's Automated Copyright Takedown System Hurts Artists
By Ben Jones
For some, getting a copyright claim on their YouTube video might be an inconvenience. For others, it’s a massive headache that ignores copyright law… in the name of enforcing copyright law.

Day in and day out automated bots detect and report millions of alleged copyright infringements, which are then processed by the receiving site without a human ever looking at them.

Needless to say, this process is far from flawless. In the past we’ve covered countless false, inaccurate, and just plain hilarious DMCA claims, but YouTube’s takedown process is particularly problematic.

Complete article

Motions for summary judgment and spoliation sanctions filed in Grooveshark case, Arista v Escape Media


In the RIAA's case against Grooveshark, Arista Records v. Escape Media, the RIAA has filed a motion for summary judgment and a motion for judgment based on spoliation of evidence.

Motion for spoliation sanctions, memorandum of law
Motion for summary judgment, memorandum of law

Capitol Records v MP3 Tunes, trial to start Tuesday February 25th in Manhattan


The trial in Capitol Records v. MP3 Tunes is scheduled to begin Tuesday, February 25th, in Manhattan, at the federal courthouse located at 500 Pearl St., New York, NY 10007-1312, courtroom 20B.