Ares' Soap Box

In SONY BMG Music Entertainment v. Tenenbaum, defendant has filed a reply brief rebutting the RIAA's opposition papers, rebutting the RIAA's contention that an award of $675,000 -- or about 65,000 times the maximum actual damages sustained -- satisfies due process standards.

Defendant's reply brief in support of motion for new trial or remittitur

[Ed. note. This brief, unlike the RIAA and Justice Department briefs, actually does discuss the applicable authorities on the due process argument, and shows that the US Court of Appeals for the First Circuit -- in which the Massachusetts District lies -- has itself applied Gore and Campbell to statutory damages awards. Also the brief actually does look at Gore and Campbell, as well as Williams, and discuss them intelligently. So it looks like the issue has finally been properly framed, and it is now unimaginable that District Judge Gertner will accept the RIAA argument and reject the First Circuit's holding. Motion granted. -R.B.] *-->





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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In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has withdrawn its sanctions motion against Professor Nesson.

Notice of withdrawal of motion*-->

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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 litigious UMG Recordings has succeeded in shutting the doors of a competitor by bringing a frivolous lawsuit against Veoh, and losing. But apparently the drain of the lawsuit caused the startup to fail:

Veoh Closing Down, UMG Lawsuit Blamed (Billboard.biz)

Sad.

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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 Capitol Records v. Thomas-Rasset, the RIAA has opted to request a new trial.

Notice of election for new trial

[Ed. note. Not satisfied with a judgment for 6500 times their actual damages, the RIAA has opted to spend additional time and attorneys fees on a trial that cannot result in a higher amount than that, and may well result in a lower amount. Hopefully Judge Davis will reach the constitutional issue next time around, and limit the plaintiffs to the constitutional limit, would be around $1.40 per infringed work. -R.B.]*-->


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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 SONY BMG Music Entertainment v. Tenenbaum, the RIAA has filed its opposition papers.

RIAA's memorandum in opposition

[Ed. note. As is their habit, and as their friends at the Department of Justice did as well, the RIAA's lawyers have ignored (a) all but one of the leading cases, (b) all of the leading law review articles and other scholarship, and (c) the actual contents of the Supreme Court's decisions. Fortunately these are contained in the amicus curiae brief we filed last year on behalf of the Free Software Foundation. -R.B.*-->


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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 oral argument of all of the pending motions in SONY BMG Music Entertainment v. Tenenbaum has been adjourned to February 23rd, at 3:15 PM:Judge Nancy Gertner: Electronic ORDER entered GRANTING [35] JOINT Motion to Continue Mtn Hearing....motion hearing reset from 2/16/10 to 2/23/10 at 3:15pm in ctrm #2, 3rd floor. Hearing will be held on MOTION for New Trial or Remittitur (Civ. Act. No. 07-cv-11446, document #26), and all pending motions. (Molloy, Maryellen) -->*-->
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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 UMG Recordings v. Lindor, the District Judge has adopted the report and recommendations of the Magistrate Judge, which
-denied the RIAA's motion for discovery sanctions; and
-granted the RIAA's motion for voluntary dismissal without prejudice, without costs or attorneys fees.
Although the Court did not expressly refer to the defendant's motion for Rule 11 sanctions, it closed the case, and it is inferable from the decision that the motion was intended to be denied.

Memorandum and Order Dismissing Case, Denying Sanctions Motion

[Ed. note I can't really comment fully on the decision just yet, since the case is not yet final, but the Judge's decision is glaringly erroneous as a matter of law, and would be reversed on an appeal. If you read my Declaration in Opposition to the RIAA's motion carefully, Judge Trager's error will leap out at you. -R.B.]

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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.-->

I just learned that the excellent site, p2pnet.net, published by outstanding writer, digital music expert, and human being Jon Newton, is shutting down for lack of funds:

"p2pnet – last post"

Jon has been a great friend to "Recording Industry vs. The People" and to the victims of the RIAA's mean spirited litigation campaign. And he is a great friend to me.

I hope donations flow in, and/or he finds another way to continue his important work.

Thankfully, the financial entry barriers to publishing aren't what they used to be, thanks to the internet, so it probably wouldn't take too much to get back p2pnet.net back up on its feet.

Thank you, Jon. Good luck with everything. Hope to see p2pnet.net back soon.

Your friend,

Ray
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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 SONY BMG Music Entertainment v. Tenenbaum, the Judge has scheduled oral argument of all of the outstanding motions for February 16th, at 9:30 AM.ELECTRONIC NOTICE of Hearing on [26] MOTION for New Trial or Remittitur (Civ. Act. No. 07-cv-11446, document #26), and all pending motions, including, Plaintiffs' Motion for Costs and Fees Under Rule 37(a)(5) (Civ. Act. No. 03-cv-11661, document #851); Plaintiffs' Motion to Compel Defense Counsel to Cease Unauthorized Recording Activities, to Cease Publication of Discovery Materials and for Sanctions (Civ. Act. No. 03-cv-11661, document #865). Motion Hearing set for 2/16/2010 09:30 AM in Courtroom 2 before Judge Nancy Gertner.(Molloy, Maryellen) -->*-->


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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.-->

According to news reports, the RIAA has announced that it will elect not to accept a judgment for $54,000, but to instead go for a new trial, limited to the issue of the appropriate amount of statutory damages.

I checked the court's docket on PACER and found no confirmation of this.

[Ed. note. In my opinion, the Court erred in (a) failing to decide the constitutional question, and decide that even the minimum statutory damages of $750 would be unconstitutionally excessive under the due process clause as against actual damages of 35 cents, and (b) permitting a new trial at all. Even if the Court could find a permissible rationale for declining to decide the constitutional question, which it can't, there is still no way under existing copyright law any award of more than $750 could be legally sustainable. So even under that scenario the judge should be directing judgment for $18,000, not setting himself up for another circus. -R.B.]
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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 RIAA's lawyers have asked for extensions of time in both Capitol Records v. Thomas-Rasset and SONY BMG Music Entertainment v. Tenenbaum.

In Tenenbaum they've twice asked for extensions of time in which to respond to Tenenbaum's remittitur motion, and in Thomas-Rasset they've asked for an extension of time in which to decide whether to accept or to challenge the reduced $54,000 verdict.

SONY BMG Music Entertainment v. Tenenbaum second RIAA request for extension of time to answer remittitur motion
Capitol Records v. Thomas-Rasset RIAA request for extension of time in which to make up its mind about accepting or challenging reduced verdict

[Ed. note. What's the problem? Not enough lawyers? - R.B.]*-->






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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.-->

According to this report in p2pnet.net, the RIAA offered to accept $25,000 in full settlement of Capitol Records v. Thomas-Rasset, and the offer was turned down. -->*-->
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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.-->

"Recording Industry vs The People" can now be subscribed to on Kindle:

http://is.gd/6SUrh
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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 Capitol Records v. Thomas-Rasset, the Judge has reduced the verdict from $1.92 million to $54,000.

The Judge did not reach the constitutional due process issue raised by Ms. Thomas-Rasset's counsel, instead deciding the motion based upon standard principles of "remittitur". The judge described the standard for remittitur as follows:so grossly excessive as to shock the conscience of the court. A verdict is not considered excessive unless there is plain injustice or a monstrous or shocking result
In discussing the factors upon which his decision rested, Judge Davis indicated that he had found that Ms. Thomas-Rasset lied under oath.

Judge Davis also indicated that he found even the reduced amount to be "harsh" and that, were he -- rather than a jury -- deciding the appropriate measure of damages, the award might well have been even lower than $54,000. But he felt that since the jury had determined the damages, it was his province to determine only the maximum amount a jury could reasonably award.

The RIAA has 7 days to decide whether to accept the reduced verdict, or to request a new trial.

Decision granting remittitur
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[Ed. note. The decision is a thoughtful one, and vindicates the principle that statutory damages under the Copyright Act must be reasonably proportioned to the actual damages. But this verdict is still 6428 times the actual damages, and therefore continues to be excessive. I do not feel the Court had an option of avoiding the constitutional question, since even the $750 minimum statutory damages is ~2200 times the actual damages flowing from an unauthorized download of an mp3 file. -R.B.]









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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 SONY BMG Music Entertainment v. Tenenbaum, the Department of Justice has filed a brief opposing defendant's motion to set aside the verdict on constitutional grounds.

Department of Justice opposition brief

[Ed. Note. Another low-class "ostrich" brief from the Department of Justice, which completely ignores (a) the wording and reasoning of the Supreme Court in Gore and Campbell, (b) the half dozen or so cases, and three law review articles, concluding that Gore and Campbell are applicable to statutory damages cases, (c) the absence of evidence of any "distribution" within the meaning of the Copyright Act, and (d) the actual holding, the actual facts, and the actual statute, in St. Louis v. Williams. I.e., the things we mentioned in the revised amicus curiae brief which we filed on behalf of the Free Software Foundation.

Completely unprofessional; indeed pathetic.

Fortunately, Judge Gertner is an eminent Constitutional Law scholar, and has demonstrated time and again that she is anything but lazy, and that even when the lawyers in the case do a lousy job, she and her staff will actually do the research and find the applicable law.

I haven't always agreed with her decisions, and the major body of her work in the consolidated RIAA cases has been very helpful to the RIAA, but she has demonstrated time and again that she is the best lawyer in this case. -R.B.]

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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.-->

Hat tip to @cbcalvin on Twitter, and betanews:

In Starr v. SONY BMG Music Entertainment, an antitrust class action against the RIAA, the complaint -- dismissed at the District Court level -- has been reinstated by the Second Circuit.

Among other things, the Appeals court noted the following allegations: First, defendants agreed to launch MusicNet and pressplay, both of which charged unreasonably high prices and contained similar DRMs. Second, none of the defendants dramatically reduced their prices for Internet Music (as compared to CDs), despite the fact that all defendants experienced dramatic cost reductions in producing Internet Music. Third, when defendants began to sell Internet Music through entities they did not own or control, they maintained the same unreasonably high prices and DRMs as MusicNet itself. Fourth, defendants used MFNs in their licenses that had the effect of guaranteeing that the licensor who signed the MFN received terms no less favorable than terms offered to other licensors. For example, both EMI and UMG used MFN clauses in their licensing agreements with MusicNet. Fifth, defendants used the MFNs to enforce a wholesale price floor of about 70 cents per song. Sixth, all defendants refuse to do business with eMusic, the #2 Internet Music retailer. Seventh, in or about May 2005, all defendants raised wholesale prices from about $0.65 per song to $0.70 per song. This price increase was enforced by MFNs.-->January 13, 2010, Opinion of US Court of Appeals for the Second Circuit

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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 article by Pamela Samuelson and Tara Wheatland of the University of California law school, on statutory damages under the Copyright Act, has now been published at 51 William & Mary L. Rev. 439, and is available for download:

Samuelson & Wheatland, "Statutory Damages in Copyright Law: A Remedy in Need of Reform"

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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 SONY BMG Music Entertainment v. Tenenbaum, defendant has filed a motion for new trial, attacking, among other things, the constitutionality of the jury's award as being violative of due process.

Motion for new trial

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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.-->

It will be interesting to see how the Big 4 record labels defend themselves from the Canadian copyright infringement class action which has been launched against them.

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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 SONY BMG Music Entertainment v. Tenenbaum, the Court has entered judgment.

In addition to the monetary award fixed by the jury, the Court also granted some, but not all, of the injunctive relief requested by the RIAA.

Additionally, the Court set briefing schedules for post-judgment motions, and for motions for fees and sanctions.

The Court also issued a ruling explaining its reasoning for dismissing the fair use defense, which (a) indicated that there might be many scenarios under which fair use would be a defense to an RIAA vs. End User p2p file sharing case, and (b) criticized -- at length -- the defendant's lawyer's behavior.

Decision granting in part, denying in part, plaintiffs' motion for permanent injunction
Judgment
Order Scheduling Post-Judgment Motions
Order Scheduling Attorneys Fees and Sanctions Motions
Decision explaining ruling striking fair use defense

[Ed. note. Since the defendant "admitted liability" there really was no legal issue for the Court to decide other than (a) the scope of injunctive relief, (b) the excessiveness of the statutory damages award, and (c) the constitutionality of the statutory damages award. As the Court's ruling indicates, issues (b) and (c) remain open and are expected to be the subject of further briefing. Additionally, the issues of attorneys fees and sanctions are likewise open, and expected to be the subject of further briefing. -R.B.]*-->* Document published online at Internet Law & Regulation-->

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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.-->