Sanctions for Blogging in Music Case?

An attorney representing a college student in a copyright infringment case based on music downloads faces possible court sanctions for an Internet posting of deposition excerpts from his defense. The attorney, Professor Charles Nesson of Harvard Law School, is representing defendant in Capital Records Inc. v. Alaujan, a District of Massachusetts case that several record companies and the RIAA filed against the students.

Judge Nancy Gertner issued an electronic order on July 7 demanding an explanation why defendant and his counsel should not be sanctioned for the posting of parts of a deposition on Harvard Law School's Berkman Center for Internet & Society Web site. The court noted that prior oral and written orders "made clear" that deposition recordings were permitted but "not to be made public via the Internet."

No Proof of Famousness - Dilution Sum. Judgment Denied

Irby v. Thompson, No. 05 Civ. 9935, NYLJ 6/5/09 "Decision of Interest" (S.D.N.Y. May 29, 2009) (Swain, J.)

Action arists out of the alleged use and dilution of the mark "Hi-Five" by defendants via the production, marketing, and distribution of recordings under the "Hi-Five" name without the consent of former "Hi-Five" bank members (plaintiffs). Plaintiff's second motion for summary judgment denied.

Dilution, 15 U.S.C. 1125(c). Dispute as to whether the mark "Hi-Five" is famous. Plaintiffs provided no evidentiary proffers to establish the mark's fame other than information contained in documents purporting to be pritntouts from the website of the RIAA, for which plaintiffs failed to proffer the necessary foundational support and authentication pursuant to Fed. R. Evid., Art. VIII. Therefore, plaintiffs failed to carry their burden of demonstrating that the "Hi-Five" mark is famous as a matter of law. (The Court expressly decided, fn. 6, that the purported RIAA records were not subject to judicial notice pursuantt o Rule 201 of the Fed. R. of Evid.)

Failure to Prosecute, Fed. R. Civ. P. 41. The Court directed plaintiffs to "show cause" as to why Plaintiffs' claims against all defendants other than a media marketing and distribution business (that allegedly marketed and distributed the recordings in question) should not be dismissed for failure to prosecute.

Summary Judgment. In denying Plaintiffs' second motion for summary judgment, the court held that "No further dispositive pre-trial motions will be entertained."

End of RIAA Litigation for Online File-Sharing?

"The recording industry plans to lay down its litigation offensive against music pirates in favor of a more PR-friendly, if not more effective, strategy. Instead of suing thousands of people for stealing tunes via the Internet, it will rely on the cooperation of Internet-service providers"

Article from the Wall Street Journal.

P2P Jury Award Set Aside

RIAA's $222,000 verdict in Capitol v. Thomas set aside. Judge rejects 'making available'; attacks excessive damages. [Article]

September 24, 2008, decision setting aside verdict

Synopsis from Ray Beckerman:
In Capitol v. Thomas, District Judge Michael J. Davis has set aside the jury's $222,000 verdict and ordered a new trial, ruling that his jury instruction -- which accepted the RIAA's "making available" theory -- was erroneous. He also rejected the 'offer to distribute' theory.

Sanction Motion Argues Blogging is Vexatious Conduct

Ray Beckerman defends alleged file-sharers in cases brought by the RIAA; he also runs the most comprehensive blog about the RIAA's legal campaign against file-sharing.

In UMG Recordings, Inc. et al. v. Lindor, No. 05 CV 1095 (DGT)(RML), (E.D.N.Y. motion dated Sept. 12, 2008), plaintiffs filed a memorandum of law in support of their motion for sanctions and to dismiss without prejudice. Their argument is:

Defendant And Her Counsel Should Be Sanctioned For Providing False And Misleading Information And For Unreasonably And Vexatiously Multiplying And Prolonging This Litigation; Defendant and her counsel should be sanctioned for discovery abuses under Rule 37 and the Court’s inherent authority; Defendant’s counsel should be sanctioned for engaging in vexatious litigation in violation of 28 U.S.C. § 1927 by making false statements, fighting Plaintiffs’ good faith efforts to uncover crucial evidence, and filing frivolous motions, all of which unnecessarily increased the costs of this litigation; Defendant, her counsel, or both should be ordered to pay monetary sanctions to Plaintiffs because their misconduct demeaned the integrity of the judicial process and unnecessarily prolonged and increased the cost of this lawsuit.

At page 19-20 of the brief, plaintiff's argue:
Finally, as this Court is aware, Defendant’s counsel has maintained an anti-recording
industry blog
during the course of this case and has consistently posted virtually
every one of his baseless motions on his blog seeking to bolster his public relations campaign and embarrass Plaintiffs. Such vexatious conduct demeans the integrity of these judicial proceedings and warrants this imposition of sanctions. See Galonsky, 1997 U.S. Dist. LEXIS 19570, at *18-19.

Spoliation in RIAA P2P Case (D.Ariz)

August 29, 2008, Order striking defendant's answer and granting default judgment to plaintiffs in RIAA P2P case Atlantic v. Howell, No 06-cv-2076(D. Ariz.).

The basis of this order, and the sanction of granting default judgment to plaintiffs, was defendant file-sharer's repeated spoliation of evidence on his computer.

Project Playlist - Sued by RIAA

The RIAA sued Project Playlist in the Southern District of New York for primary copyright infringement, secondary, infringment, common law infringement of pre-72 recordings, and unfair competition (pre-72 only). Atlantic Recording Corp. et. al v. Project Playlist, Inc., No. 08-cv-3922-DC (S.D.N.Y. complaint filed April 28, 2008). The theme of Plaintiffs' allegations can be summarized as follows: "Project Playlist therefore sets about to increase its user base and profits – all at Plaintiffs’ expense – by portraying itself as an innovative way to find music on the Internet. However, theft is not innovation, and the Internet does not grant a license to steal." (Compl. para. 4).

Read this doc on Scribd: Atlantic v Project Playlist COMPLAINT

Nail and Mail - The Bronx

Warner Bros. Records Inc. v. Berry, No. 07 Civ. 1092-HB, 4/15/08 N.Y.L.J. "Decision of Interest" (S.D.N.Y. decided Apr. 9, 2008).

The court adopted Magistrate Judge's recommendation to deny Plaintiff's default judgment application and dismissed the case.

Plaintiff's alleged that Defendant used KaZaA to download, distribute and make available for distribution the copyrighted recordings of certain artists in violation of the Copyright Act. Over a year before filing the complaint, Plaintiffs served AOL (an ISP), which identified Defendant as the person responsible for the IP address that was using KaZaA. AOL provided Plaintiff's with an address for Defendant in the Bronx, NY. Plaintiffs then hired a process server, whose attempts at service were "unsuccessful"; thereafter, the process server affixed one copy on the property in the Bronx. and depositing a copy of the summons in a first class post paid envelope addressed to the same address.

However, the Court found that service on Defendant was defective and therefore dismissed the complaint. "Here, service was defective under the 'nail and mail' method [CPLR 308(4)] because Plaintiffs' process server both affixed and mailed the summons to Defendant's last known residence."

Though the mailing component of service by "affixing and mailing" may be to the defendant's last known residence, "the 'affixing' component must be to the door of the defendant's actual place of business, dwelling place or usual place of abode, and not to the defendant's last known residence. To blur the distinction between 'last known residence' and 'dwelling place' 'would diminish the likelihood that actual notice will be received by potential defendants.'"

However, the Court did not adopt the Magistrate Judge's recommendation that Plaintiffs be ordered to show cause they they did not violate FRCP 11(b). The Court found that "while Plaintiffs' lawyers should be faulted for failing to keep closer tabs on their process server and for failing to better supervise their paralegal, their actions do not rise to the level of a Rule 11(b) violation. Plaintiffs' lawyers might have been sloppy in their attempts to serve Defendant, but giving them as officers of the Court the benefit of the doubt, all their representations to this Court were...nor for the improper purpose of unnecessary delay."

The Pirate Bay - Owe $2.5 Mil?

The International Federation of the Phonographic Industry made a $2.5 million compensation claim Monday in a Swedish court, where the developers of The Pirate Bay (torrent-tracking site) have been indicted for copyright violations related to the sharing of 24 music albums, nine films and four videogames.

In response, Gottfried Svartholm Warg, one of four founders of The Pirate Bay, said Monday that "record companies can go screw themselves".

[Wired article]

Doe No Mo'

A big day at the races for the RIAA, who have veered from their practice of filing copyright infringement suits against John Doe defendants by filing complaints against...wait for it... ACTUAL NAMED PLAINTIFFS!

A look inside the RIAA's allegations:

A third-party investigator retained by Plaintiffs, MediaSentry, Inc., identified an individual, later determined to be Defendant, using LimeWire on the P2P network Gnutella at IP address [] on [date] at [time] EDT distributing [number] audio files over the Internet. The Defendant was identified as the individual responsible for that IP address at that date and time.

After learning [Named Defendant]'s identity, Plaintiffs’ national counsel sent [Named Defendant] a letter advising her that copyright infringement had been detected and providing a telephone number and e-mail address that could be used to contact Plaintiffs’ representatives to try to resolve the matter before the commencement of litigation.

The parties were unable to resolve the matter, and Plaintiffs are therefore filing their Complaint against Defendant for copyright infringement.

What a breath of fresh air!

[See, e.g., Zomba Recording, LLC v. Cancino, No. 2:08-cv-00074 (S.D.Tex. complaint filed Mar. 12, 2008). As of this posting, OTCS counted no-less than 33 complaints filed in various federal courts by the RIAA against named defendants on March 11-12, 2008].

RIAA Responds to California Joinder Ruling

In response to a California federal judge rejecting joinder of John Does 2-5 in a P2P suit filed by the RIAA, the RIAA has simply increased the number ofcases it files in California.

In the California Central District, for example, there were 19 cases filed on February 21, 2008 by the RIAA against individual Does, each numbered "1" through "19" in the caption.

Judicial economy?

[In no particular order...

John Doe # 16Case Number: 2:2008cv01181
John Doe # 4Case Number: 2:2008cv01157
John Doe # 14Case Number: 2:2008cv01172
John Doe # 18Case Number: 2:2008cv01190
John Doe # 7Case Number: 2:2008cv01160
John Doe # 2Case Number: 2:2008cv01155
John Doe # 17Case Number: 2:2008cv01182
John Doe # 11Case Number: 2:2008cv01166
John Doe # 19Case Number: 2:2008cv01192
John Doe # 13Case Number: 2:2008cv01170
John Doe # 8Case Number: 2:2008cv01163
John Doe # 9Case Number: 2:2008cv01164
John Doe # 1Case Number: 2:2008cv01154
John Doe # 10Case Number: 2:2008cv01165
John Doe # 5Case Number: 2:2008cv01158
Doe # 6Case Number: 2:2008cv01159
John Doe # 15Case Number: 2:2008cv01180
John DoeCase Number: 2:2008cv01156
John Doe # 12Case Number: 2:2008cv01168]

9 More DOE(s) Suits Filed by RIAA

OTCS woke up this morning with the Barenaked Ladies song "It's All Be Done" stuck in its head. Must have been a sign...

OTCS found the following nine cookie-cutter cases filed yesterday in various federal courts alleging on-line copyright infringement by unknown John Does accompanied by requests for leave to take immediate discovery.

Zomba Recording LLC et al v. Doe No 1 et al; M.D.Ala; case no. 3:2008cv00126; filed 02/21/2008.
UMG Recordings, Inc. et al v. Doe; N.D. Ala.; case no. 7:2008cv00310; filed 02/21/2008.
LaFace Records LLC et al v. Does 1-14; D.Ariz; case no. 2:2008cv00335; filed 02/21/2008.
Arista Records LLC, et al v. Doe; N.D.Cal; case no. 3:2008cv01041; filed 02/21/2008.
Artista Records LLC et al v. Doe #1 et al; M.D.Ga.; case no. 3:2008cv00018; filed 02/21/2008.
Arista Records LLC et al v. Does 1-3; N.D.Ill.; case no. 1:2008cv01066; filed 02/21/2008.
ARISTA RECORDS LLC et al v. DOES 1-18; S.D.Ind; case no. 2:2008cv00065; filed 02/21/2008.
Zomba Recording LLC et al v. DOES 1-15; E.D.Ky; case no. 0:2008cv00031; filed 02/21/2008.
Atlantic Recording Corporation et al v. Does; E.D.Mich; case no. 1:2008cv10728; filed 02/21/2008.

[Please verify accuracy of each case.]

Joinder in DOE Suits

A California federal judge rejected joinder of John Does 2-5 in a P2P suit filed by the multiple record labels. See Rules 20 and 21 of the Federal Rules of Civil Procedure. In its order denying plaintiff's motion for reconsideration, the court cited authority for its holding:
...numerous courts have held the opposite: that joinder of defendants who allegedly downloaded music using the same ISP and the same file-sharing program is improper. See, e.g., Interscope Records v. Doe, No. 04-0197 (M.D. Fla. Apr. 1, 2004) (severing defendants who used the same ISP and same file-sharing program); see also BMG Music v. Doe, No. 06-CV-1579 (N.D. Cal. July 31, 2006) (severing defendants who used the same ISP); BMG Music v. Doe, No. 04-650 (E.D.Pa. Mar. 5, 2004) (same); Twentieth Century Fox Film Corp. v. Doe, No. C-04-4862 ("[The allegation that defendants used the same ISP] amounts to no more than a claim that ten unrelated defendants engaged in distinct and unrelated conduct.").

Analysis by Recording Industry v. the People here.

[Sony BMG Music Entertainment v. Does 1-5; No. Cv-07 2434-SJO (C.D.Cal denying plaintiff's motion for reconsideration entered Sep. 4, 2007) (Docket No. 9)]

RIAA Elaborates on Nature of P2P Copyright Infringement

This brief, filed by the RIAA in a P2P file-sharing case, showcases the recording industry's analysis of copyright infringement arising out of the online distribution of sound recordings by P2P users.

[Atlantic Recording Corp. v. Howell, No. 2:06-cv-02076-PHX-NVW (D.Ariz brief filed Feb. 6, 2008)]

Is the Shelf-Life of the DOE-Cases About to Expire?

Another cookie-cutter complaint, application and memorandum of law identical to dozens of DOE cases filed in the past month was filed this week in the District of D.C. (...yawn...).

[Capitol Records, Inc. et al. v. Does 1-9; filed 2/06/08 in D.D.C.; case no. 1:08-cv-00210-RMU]

However, with the RIAA receiving pressure from DOES, and the Electronic Frontier Foundation being granted leave to file an amicus brief in other cases, how much future does these form pleadings & motions have?

Similarly damaging to the RIAA's DOE cases is that they appear to be using an unlicensed private investigator, MediaSentry, to investigate unauthorized file-sharing and determine P2P user's ISPs. The legality of MediaSentry's actions, and the admissibility of any evidence obtained by them, is questionable, as recently recognized by the Hon. Judge Castel in the SDNY. (See e.g., N.Y. Gen. Business Law secs. 70, 71, and 83.)

Electronic Frontier Weighs in on Ex Parte Discovery of Does

The Electronic Frontier Foundation filed an amicus brief in the Arista v. Does 1-21 case against Boston University Students, attacking the RIAA's ex parte discovery application, both on evidentiary and legal grounds. Read it here.

***UPDATE: the RIAA's opposition to the EFF's motion for leave to file an amicus is available here.

Student Response to Ex Parte Discovery Request

The oft-venomous blog "Recording Industry vs. The People" links to this especially interesting memorandum of law in support of a John Doe (college student) defendant's motion to quash the ex parte subpoena issued by the RIAA to Boston University for the disclosure of student's names associated with IP addresses.

(See cases cited therein.)