Ares' Soap Box

In Malibu Media v. Does 1-13, a subpoena addressed to Verizon, calling for the identities and addresses of John Doe defendants, was returnable May 12th.

On May 10th the Court stayed enforcement of the subpoena, and directed plaintiff's counsel to immediately notify Verizon of the stay.

Unfortunately, as it turns out, Verizon had responded to the subpoena FIVE (5) DAYS BEFORE THE SUBPOENA'S RETURN DATE, on May 7th.

Plaintiff's "motion for clarification"


[Ed. note. I find this astonishing and quite troubling. If I were the Court I would take serious measures against Verizon for responding to a subpoena prior to its return date, thus preventing judicial review of the subpoena. Verizon has some 'splainin' to do'. I'm also wondering why plaintiff's counsel took ten (10) days to notify the Court of Verizon's misconduct, but perhaps there was a valid reason for that. I don't know. - R.B.]


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MP3Tunes Inc., the defendant in Capitol Records v. MP3Tunes Inc., has filed for bankruptcy, according to this report from Reuters.



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In Malibu Media v. Does 1-13, another BitTorrent downloading "John Doe" case, a defendant has moved to sever the actions, and to quash the subpoenas.

Magistrate Judge E. Thomas Boyle has issued an order staying enforcement of the subpoenas pending a determination of the motion.

Motion for protective order, to sever, and/or to quash
Order staying enforcement of subpoenas
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In K-Beech, Inc. v. Does 1-37, and in 3 other similar BitTorrent downloading cases pending in the US District Court for the Eastern District, in Brooklyn, the plaintiffs' motions for expedited discovery have been denied, the cases against the various John Doe defendants severed, and the defendants' motions to quash were in most respects granted, in a report and recommendation by Magistrate Judge Gary Brown.
Some excerpts from the decision:These actions are part of a nationwide blizzard of civil actions brought by purveyors of pornographic films alleging copyright infringement by individuals utilizing a computer protocol known as BitTorrent.....
.....
The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the 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. An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones...... Thus, it is no more likely that the subscriber to an IP address carried out a particular computer function – here the purported illegal downloading of a single pornographic film – than to say an individual who pays the telephone bill made a specific telephone call. Indeed, due to the increasingly popularity of wireless routers, it much less likely. While a decade ago, home wireless networks were nearly non-existent, 61% of US homes now have wireless access.5 Several of the ISPs at issue in this case provide a complimentary wireless router as part of Internet service. As a result, a single IP address usually supports multiple computer devices – which unlike traditional telephones can be operated simultaneously by different individuals. See U.S. v. Latham, 2007 WL 4563459, at *4 (D.Nev. Dec. 18, 2007). Different family members, or even visitors, could have performed the alleged downloads. Unless the wireless router has been appropriately secured (and in some cases, even if it has been secured), neighbors or passersby could access the Internet using the IP address assigned to a particular subscriber and download the plaintiff’s film.
....
[A]lthough the complaints state that IP addresses are assigned to “devices” and thus by discovering the individual associated with that IP address will reveal “defendants’ true identity,” this is unlikely to be the case. Most, if not all, of the IP addresses will actually reflect a wireless router or other networking device, meaning that while the ISPs will provide the name of its subscriber, the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper.
...............
Our federal court system provides litigants with some of the finest tools available to assist in resolving disputes; the courts should not, however, permit those tools to be used as a bludgeon. As one court advised Patrick Collins Inc. in an earlier case, “while the courts favor settlements, filing one mass action in order to identify hundreds of doe defendants through pre-service discovery and facilitate mass settlement, is not what the joinder rules were established for.” Patrick Collins, Inc. v. Does 1–3757, 2011 U.S. Dist. LEXIS 128029, at *6–7 (N.D.Cal. Nov. 4, 2011). ..............................
In the four cases before this Court, plaintiffs have improperly avoided more than $25,000 in filing fees by employing its swarm joinder theory. Considering all the cases filed by just these three plaintiffs in this district, more than $100,000 in filing fees have been evaded. If the reported estimates that hundreds of thousands of such defendants have been sued nationwide, plaintiffs in similar actions may be evading millions of dollars in filing fees annually. Nationwide, these plaintiffs have availed themselves of the resources of the court system on a scale rarely seen. It seems improper that they should profit without paying statutorily required fees. -->May 1, 2012, Decision of Magistrate Judge Gary BrownCommentary & discussion:

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In Perfect 10 v. Tumbler, the photo sharing site Tumblr has been sued for copyright infringement.

Complaint
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In Capitol Records v. ReDigi, a new scheduling order has been entered, providing for discovery to be concluded by June 20th, and for the summary judgment briefing to be conducted over the summer, and for oral argument of the summary judgment motion to take place on October 5th.

Amended Case Management Order
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In Capitol Records v. ReDigi, papers have been submitted requesting permission for a substitution of ReDigi's counsel.

ReDigi's present firm is Ray Beckerman, PC.

The proposed new firm would be Meister Seelig & Fein LLP.

The judge has requested a joint letter from Capitol Records' lawyers and the Meister Seelig firm indicating whether deadlines in the case management order would be affected by the proposed substitution.

Stipulation of Substitution
Statement pursuant to Local Rule 1.4
Order requesting joint statement from plaintiff's counsel and proposed incoming defendant's counsel

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In James v. UMG Recordings, a royalty agreement class action which alleges that UMG understated royalties owed to performing artists for digital downloads by classifying them as sales, rather than licenses, UMG's motion for summary judgment has been denied.
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April 19, 2012, Opinion denying Defendant's motion for summary judgment
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In Hard Drive v. Does 1-90, a mass John Doe case based on alleged BitTorrent downloads of a movie, pending in the Northern District of California, San Jose Division, the Court, by Hon. Howard R. Lloyd, Magistrate Judge, has denied plaintiff's ex parte motion for expedited discovery.

Judge Lloyd's decision held thatthe court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net). Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting “settlement” payments from persons who may or may not be infringers. This the court is not willing to do.
Order Denying Expedited Discovery



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All of the defendants' dismissal motions were denied from the bench on April 6th, in Arista Music v. Escape Media:
Minute Entry for proceedings held before Judge Thomas P. Griesa: Oral Argument held on 4/6/2012. Defendants' three motions to dismiss are denied in open court. (cd)

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In Viacom v. YouTube, a 2-judge panel in the Second Circuit* reversed the District Court decision granting summary judgment to YouTube, and remanded for a trial of certain factual issues.

* Judge Miner, who was originally a member of the panel, passed away prior to the decision.

April 5, 2012, decision of US Court of Appeals for the 2nd Circuit
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In the 8th Circuit appeal of Capitol Records v. Thomas-Rasset, the Department of Justice and Jammie Thomas-Rasset have filed further briefs.

DOJ Appellee Brief
Thomas-Rasset Reply Brief



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In Arista Music v. Escape Media (Grooveshark), the RIAA has filed its memoranda of law opposing the defendants' dismissal motions.

Plaintiffs' memorandum of law in opposition to motion to dismiss for failure to state a claim
Plaintiffs' memorandum of law in opposition to Greenberg motion dismiss on jurisdictional grounds
Plaintiffs' memorandum of law in opposition to Westermann Clark motion to dismiss on jurisdictional grounds


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Here is the announcement by the Copyright Society of the USA:

Upcoming events:
Date: March 20, 2012
Title: CAPITOL RECORDS v. REDIGI and THE FIRST SALE DOCTRINE
Location: NEW ENGLAND LAW/BOSTON 154 Stuart Street, Boston, MA ROOM 501 Time: 4:00PM

Description: Ray Beckerman’s firm is defending ReDigi, Inc., a Cambridge-based tech startup which provides its users with online cloud storage and a digital music marketplace for select song files, in Capitol Regords v. ReDigi. The action was commenced on January 6th, and Capitol Records’ motionfor preliminary injunction was denied on February 6th. The case involves the question of whether digital music files are, in the first place, subject to the Copyright Act’s “distribution right”, and if so whether under the circumstances presented by ReDigi’s technology and business methods are nevertheless subject to the “copyright exhaustion” and “first sale” exceptions to the distribution right, which attach to the resale of a single, particular copy as to which the copyright owner has already received its compensation on the “first sale”.

Flyer (PDF)

Lexis Nexis announcement

New England Law School announcement

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CAPITOL RECORDS v. REDIGI and THE FIRST SALE DOCTRINE                                 A presentation by Ray Beckerman, Esq. of Ray Beckerman, PC                                                  March 20, 2012 4 pm – 6 pm                                                                         NEW ENGLAND LAW/BOSTON                                                   154 Stuart Street, Boston, MA                                                              ROOM 501
                                                            presented by                                    The Entertainment and Sports Law Organization and Intellectual                                    Property Law Association of New England Law/Boston                                                          in connection with                          THE COPYRIGHT SOCIETY OF THE USA/New England Chapter                                          Patti Jones, Esq.  and Lucy Lovrien, Esq. Co-Chairs                                
Ray Beckerman’s firm is defending ReDigi, Inc., a Cambridge-based tech startup which provides its users with online cloud storage and a digital music marketplace for select song files, in Capitol Regords v. ReDigi. The action was commenced on January 6th, and Capitol Records’ motion for preliminary injunction was denied on February 6th. The case involves the question of whether digital music files are, in the first place, subject to the Copyright Act’s “distribution right”, and if so whether under the circumstances presented by ReDigi’s technology and business methods are nevertheless subject to  the “copyright exhaustion” and “first sale” exceptions to the distribution right, which attach to the resale of a single, particular copy as to which the copyright owner has already received its compensation on the “first sale”.
 Google, recognizing the importance of the case, sought leave to submit an amicus curiae brief in support of ReDigi’s position in connection with the preliminary injunction motion, but the Judge denied permission.
Ray is associated with Ray Beckerman, PC, in Forest Hills, Queens,in New York City, where he works side by side with his colleague Ty Rogers. He is a veteran commercial litigator, and the author of the popular internet law blog, “Recording Industry vs. The People”. He is known as “NewYorkCountryLawyer” on slashdot.org and as @raybeckerman on Twitter.
Ray attended law school at night, at St. John’s University School of Law, whileworking during the day at Phillips, Nizer, Benjamin, Krim & Ballon
An Introduction to the First Sale Doctrine will be presented by Professor Russell VerSteeg of New England Law/Boston.
ALSO SEE:            Capitol Records v ReDigi   and www.csusa.org   
RSVP:  patti@pattijones.com  or pattijones.esq@comcast.net



Email: patti@pattijones.com  or
pattijones.esq@comcast.net
Office phone: 617-948-2139
Office fax: 617-948-2501
20 Park Plaza, Suite 400
Boston, MA 02116



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In Capitol Records v. MP3Tunes, individual defendant Michael Robertson has moved for summary judgment dismissing the case on grounds of lack of personal jurisdiction.

Memorandum of law in support of defendant Robertson's motion for summary judgment on jurisdictional grounds

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A new case has been commenced by television broadcasters against Aero, Inc., alleging that Aero is an unlicensed service which plans to retransmit plaintiffs' television programs over the internet.

Complaint

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In Capitol Records v. MP3Tunes, an interlocutory appeal by several of the defendants has been dismissed.

Order dismissing appeal
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In the RIAA's case against Grooveshark, Arista Music v. Escape Media, Grooveshark and several other defendants have moved to dismiss the amended complaint for failure to state a claim.

Memorandum of law of defendants Escape Media, Samuel Tarantino, and Joshua Greenberg in support of motion to dismiss amended complaint for failure to state a claim


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In Arista Music v. Escape Media, five of the Grooveshark employees named as defendants in the amended complaint have moved to dismiss, on the ground that they are not subject to jurisdiction in New York.

Memorandum of law in support of jurisdiction defendants' motion to dismiss amended complaint

[Note: You may wonder why the RIAA added employees, of limited means. My guess is that they know that these individuals do not have strong financial resources, and are unequipped to defend themselves in a federal court litigation, so the RIAA wants to try to extort testimony from them against the 'deep pockets', by making a deal with them in which they are given a release in exchange for their 'cooperation'. Testimony obtained under such extortionate circumstances would have no probative value, and is probably unethical, but the RIAA has gone that route in the past. Some of the same lawyers who have used that tactic for the RIAA in the past are representing the RIAA in this case. If I were the judge, I would blow my stack. -R.B.]





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