Ares' Soap Box

The RIAA's "business plan" is even worse than I'd guessed it was.

The RIAA paid Holmes Roberts & Owen $9,364,901 in 2008, Jenner & Block more than $7,000,000, and Cravath Swain & Moore $1.25 million, to pursue its "copyright infringement" claims, in order to recover a mere $391,000. [ps there were many other law firms feeding at the trough too; these were just the ones listed among the top 5 independent contractors.]

Embarrassing.

If the average settlement were $3,900, that would mean 100 settlements for the entire year.

As bad as it was, I guess it was better than the numbers for 2007, in which more than $21 million was spent on legal fees, and $3.5 million on "investigative operations" ... presumably MediaSentry. And the amount recovered was $515,929.

And 2006 was similar: they spent more than $19,000,000 in legal fees and more than $3,600,000 in "investigative operations" expenses to recover $455,000.

So all in all, for a 3 year period, they spent around $64,000,000 in legal and investigative expenses to recover around $1,361,000.

Shrewd.

These people are very shrewd. No wonder they get paid the big bucks
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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.-->

In SONY BMG Music Entertainment v. Tenenbaum, the Court has reduced the jury's award from $675,000, or $22,500 per infringed work, to $67,500, or $2,250 per infringed work, on due process grounds, holding that the jury's award was unconstitutionally excessive.

In a 64-page decision, District Judge Nancy Gertner ruled that:-to decide the issue on common law remittitur grounds would not have avoided the constitutional question, since plaintiffs had indicated they would not accept a "remitted" award, but would instead proceed to a second trial in the event of remittitur;
-the award of $22,250 per infringed work could not withstand scrutiny under the Due Process Clause and was unconstitutionally excessive;
-$2,250 per infringed work was the maximum amount that the Constitution would permit given the facts of this case;
-the Gore, Campbell, and Williams line of cases was applicable to determining the constitutionality of statutory damages awards
-statutory damages must bear a reasonable relationship to the actual damages
-the actual damages sustained by plaintiffs was no more than $30
-the benefit to the defendant was in the neighborhood of $1500
-it was permissible to treble the minimum statutory damages due to defendant's wilfulnessDecision reducing jury verdict from $675,000 to $67,500

[Ed. note. Since the Court concluded that the actual damages were ~ $1 per work, or $30 total, I don't understand how it arrived at the conclusion that an award of 2250 times that amount passes constitutional muster. -R.B.] *-->










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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.-->

In Viacom v. YouTube, the Court has ruled that YouTube qualifies for DMCA "safe harbor" protection.

Opinion and Order

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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.-->

In Capitol Records v. Thomas-Rassett, Judge Davis has appointed a Special Master to promote meaningful settlement discussions.

The Special Master's fee will be $400 per hour, and payment will be made by the plaintiffs.

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Keywords: lawyer 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 portable music playerTo 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.-->

The ABA's online CLE panel on "Seeking harmony in music distribution" will be at 1 pm today. I will be on the panel.

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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.-->

In Pearson Education v. Aurora, a commercial copyright infringement case against a pro se defendant, in which District Judge Shira A. Sheindlin awarded the plaintiff $50,250.00, or $750 per infringed work, in statutory damages, at the plaintiffs' request, the Court noted the factors to be considered in determining the amount of statutory damages:
In calculating the amount of statutory damages to award for copyright infringement, courts consider: "(1) the infringer's state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer's cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties." (fn 40) [Bryant v. Media Right Prods., No. 09 Civ. 2600, 2010 WL 1659113, at *6 (2d Cir. Apr. 27, 2010) (citing N.A.S. Import, Corp. v. Chenson Enters., Inc., 968 F.2d 250, 252-53 (2d Cir. 1993)]
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Keywords: lawyer 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 portable music playerTo 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.-->

Although the case hasn't been concluded yet, the RIAA has sought an order freezing the assets of defendants in Arista Records v. Lime Group.

Plaintiffs' memorandum of law
Proposed order freezing assets*-->


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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.-->

Although the case has not yet been concluded, the RIAA have made a motion requesting a permanent injunction in Arista v. Lime Group.

Proposed injunction
Memorandum of Law
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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.-->

In the recent mass lawsuit brought in DC concerning file sharing of a movie, Achte/Neunte v. Does 1-2094, the Electronic Frontier Foundation and other organizations have filed papers supporting Time Warner's motion to quash subpoena. EFF's brief further argues that in any further lawsuits, the plaintiffs be required to establish a jurisdictional basis for bringing the action in that court, that they be enjoined not to engage in improper joinder, and that they be required to establish to some extent the merits of their claim.

Amicus Curiae Brief of EFF, Public Citizen, ACLU Foundation, and ACLU of Nation's Capitol
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Keywords: lawyer 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 portable music playerTo 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.-->

In Maverick Recording Co. v. Harper, defendant has filed a petition for certiorari from the Fifth Circuit's ruling which eliminated "innocent infringement" as a defense to any case in which CD's bearing copyrights were sold in stores, even though the copy was not made from such a CD

Petition for Certiorari


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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.-->

In Arista Records v. Lime Group, the defendants have made a motion for reconsideration of Judge Woods's prior decision.

Memorandum of Law in support of defendants' motion for reconsideration



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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.-->

Those considering President Obama's nomination of Solicitor General Elena Kagan to the Supreme Court should remember that she did an excellent job on the brief in Cartoon Networks v. CSC Holdings, where she took positions directly contrary to those being taken by the Jenner & Block law firm, whose pro-MPAA pro-RIAA partners occupy very high positions in the Obama administration's Department of Justice.

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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.-->

In Arista Records v. Lime Group, District Judge Kimba Wood has granted summary judgment to the RIAA on several of the key issues in the case:

-inducement of copyright infringement
-common law copyright infringement and
-unfair competition

holding not only Lime Wire, but also its 87% shareholder (Lime Group) and its CEO and sole director, to be liable as well.

The decision, not being a final judgment, is not appealable.

May 11, 2010, granting and denying motions for summary judgment
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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.-->

In the case targeting students at the State University of New York in Albany, Arista Records v. Does 1-16, the US Court of Appeals for the Second Circuit has affirmed the orders of the lower court denying a motion to quash.

The appeals court held that the order was appealable, but rejected John Doe #3's arguments that :

-the district court was without authority to refer the motion to the Magistrate Judge;
-the complaint failed to state a claim for copyright infringement;
-the "fair use" defense barred plaintiffs' case; and
-the papers submitted in support of the RIAA's ex parte motion were too vague.

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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.-->

Great article in Music Think Tank on the 'business model' of famed cellist Zoe Keating:

What unsigned artist wouldn’t kill to have 1.4 million Twitter followers?

As the old channels die out, social media is where music fans are gathering. Yet musical artists who aren’t celebrities have little choice but to grow their online fanbases much in the same way that they build audiences on tour: by working hard, being there and showing individual fans that they value their support on a personal level.

The story is no different for Zoe Keating. The classically trained, experimental cellist even has it a bit tougher, given her chosen medium: one-woman instrumental composition with cello and computerized loops.

Complete article
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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.-->

This article in p2pnet.net describes an online extortion scam imitating the RIAA and MPAA.
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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.-->

In Viacom v. YouTube, a number of organizations have filed an amicus curiae brief on behalf of YouTube, in support of its defense based on the Digital Millennium Copyright Act.

The filing organizations are the

American Library Association
Association of College and Research Libraries
Center for Democracy and Technology
Computer and Communications Industry Association
Electronic Frontier Foundation
Home Recording Rights Coalition
Internet Archive
Netcoalition and
Public Knowledge

The brief starts out:As is now abundantly evident, the Internet has grown into an unprecedented, global, accessible, vibrant platform for free speech and creative expression. Never before have so many citizens been able to reach an audience across so many mediums, at such low cost. All of this activity depends in turn upon a thriving marketplace of service providers—including YouTube, MySpace, Facebook, Blogger, and Flickr, to name a few—providing inexpensive (or free) public fora for speech and innovation. Changes to the legal climate for these service providers can have profound consequences for the future of free expression online. Thus, proper interpretation of copyright laws as applied to online service providers is a matter of crucial public interest.
Amicus Curiae brief of American Library Association, et al





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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.-->

According to a a report in THR, Esq. a new wave of tens of thousands of lawsuits has been commenced by the alleged owners of copyrights in films made by non-major studios. The complaint in Achte/Neunte v. Does 1-2094 was filed on March 18, 2010, in the District of Columbia. It appears that the new cases are employing the very same tactics used by the RIAA in illegally joining large numbers of John Does in the same case, and moving ex parte (without notice) for discovery. It appears that the new cases are based on BitTorrent, rather than Gnutella, or FastTrack, protocols of file sharing.

The ex parte discovery motion was granted on March 22nd.

The Court's order provides that a motion to quash must be made within 30 days of service of the subpoena on the ISP, but makes no provision for how, when, or even whether the ISP is to give notice to its customers. I.e., under the order, the requested information can be divulged to plaintiff before the customer even learns that there is a subpoena.

According to the declaration submitted in support of the ex parte motion, the plaintiff's evidence is "proprietary".

Complaint
Order granting ex parte motion for discovery
Declaration in support of motion

[ Ed. note. My first reaction when I heard of this was that it was an April Fool's joke, since the RIAA's strategy of suing its customers has been a colossal failure, and since a small film maker would be even less likely to be that stupid. But -- unless someone is willing to file false documents in a federal court as part of a prank -- this is real. Real madness. But not an April Fool's joke, apparently. I've never heard of the plaintiff, or of plaintiff's lawyers, or of the allegedly infringed movie, but then again I don't get out much. I'm not much of a businessman, but I was wondering if this is some perverted way of getting publicity for movies no one has heard of. R.B.] *-->


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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.-->

In SONY BMG Music Entertainment v. Tenenbaum, the Court has assessed $2249 in attorneys fees against the defendant and his attorney Professor Charles Nesson, in connection with plaintiffs' motion to compel production.

Order assessing attorneys fees



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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.-->