USPTO & RIAA what a beautiful mess!!!

The U.S. Patent and Trademark Office (PTO) report "Filesharing Programs and Technological Features to Induce Users to Share" attacks P2P software for causing consumers to inadvertently share unintended files. Incredibly the report then takes another huge leap and claims that P2P then is also a factor in terrorism, child pornography, and identity theft.

The EFF provides a comprehensive analysis on this farce that I recommend. I've personally presented to both the U.S. FTC and Senate and so want to focus on two aspects.

First, the P2P industry has been responsive to government concerns. Commercial P2P software has been improved through a combination of voluntary company initiatives, P2P association standards, and government recommendations. These improvements have included a clear warning on P2P usage risks on software home pages, information web pages on how consumers can protect themselves, and child exploitation warnings and reporting.

Second, the report is three years late. The commercial companies that the report purports to study are out of business or substantially different due to RIAA lawsuits supported by favorable U.S. Congress legislation and Supreme Court rulings. The result is that the commercial companies that could work with the USPTO have been superseded by open source and international developers that are beyond the influence of the U.S. government.

Via: http://www.p2p-weblog.com

RIAA Drops Another Case In Chicago Against Misidentified Defendant

Once again, this time in BMG v. Thao, the RIAA has dropped a case it brought against a misidentified defendant.

Lee Thao was sued in the Eastern District of Wisconsin by BMG Music and other record labels for allegedly sharing files over the Kazaa network. The RIAA based its case on information that the cable modem used to partake in file sharing was registered to Mr. Thao. However, both the ISP and the RIAA failed to recognize that Mr. Thao was not a subscriber to the ISP at the time of the alleged file-sharing, and therefore did not have possession of the suspect cable modem at that time. Daliah Saper of Saper Law Offices represented Mr. Thao and got the case dismissed after pointing out to the RIAA's attorneys that they had made another blunder in their investigations.

A similar Chicago case, Elektra v. Wilke, was previously dismissed. Mr. Wilke, too, had been represented by Ms. Saper.

Notice of Dismissal*
Fax*
Letter*

Recordingindustryvspeople

NEW SITE ON THE BLOCK!!!

Please visit this great site created by our new friend Julian Asano from Brooklyn Law School class of 08.

http://riaalawsuitdefense.wetpaint.com/

Julian has created an RIAA defense network Wiki contribution site dedicated to informing practicing attorneys about defending themselves from consumer targeted RIAA litigation.

Mr. Asano is hoping that the site will serve as a tool for practitioners to get together and share their knowledge about the subject. It seems only right considering that the record companies are mainly represented by the same firm.

In any event show the site some love.

Answer, Counterclaims, and Discovery Notices Served in Elektra v. Torres

The defendant's answer, counterclaim, and discovery notices have been served in a new contested case in Brooklyn, Elektra v. Torres.

Answer and Counterclaims*
Answer and Counterclaims, Exhibit A (Amicus Brief filed by ACLU, Public Citizen, EFF, AALL, and ACLU Foundation of Oklahoma in Capitol v. Foster)*
Defendant's Initial Disclosures*
Defendant's First Set of Interrogatories to Plaintiffs*
Defendant's First Request for Production of Documents and Things*
Defendant's Notice to Take Deposition of Elektra Entertainment*

* Document published online at Internet Law & Regulation

RIAA Opposes EFF's Motion for Leave to File Amicus Brief in Lava v. Amurao, Attacks "Recording Industry vs The People"

In Lava v. Amurao, the RIAA has opposed the motion made by the Electronic Frontier Foundation for permission to file an amicus brief.

Among other things, the RIAA argued that Ray Beckerman, who had acted as local counsel in filing the EFF's motion, publishes "Recording Industry vs. The People", which, the RIAA said, had accused the Plaintiffs of acting as "a cartel of multinational corporations [that] collude to absuse our judicial system, distort copyright law, and frighten ordinary working people and their children". (Brief at Page 4, FN 1).

RIAA Memorandum of Law in Opposition to Motion by Electronic Frontier Foundation for Leave to File Amicus Curiae Brief*

Suggestions to College Students Being Targeted by the RIAA

THIS IS NOT LEGAL ADVICE. HOWEVER, I DO ADVISE YOU TO GET LEGAL ADVICE, AND NOT TO TAKE YOUR ADVICE FROM THE RIAA, THE MPAA, YOUR SCHOOL, OR ANYONE ELSE WHO IS NOT YOUR LAWYER.

These are my suggestions to college students being targeted by the RIAA:

1. Join together with other students who are being targeted, pool your financial resources, and hire an attorney who is ready, willing, and able to (a) advise you of your rights and (b) fight the RIAA's "John Doe" cases when they are brought.

2. Bring to your college or university's attention my "Open Letter to Colleges and Universities"

3. Join or start campus charters of Digital Freedom and/or FreeCulture.

4. Remember that the RIAA does not presently have your identity, and that by calling them or visiting their web site you may be giving them your identity.

5. Read and learn about your rights.

6. Organize.

7. Organize.

8. Organize.

-R.B.

Elektra v. Santangelo -- Case Closed Except for Defendant's Attorneys Fees

Elektra v. Santangelo -- Case Closed Except for Defendant's Attorneys Fees

It is now official: the case against Patti Santangelo, Elektra v. Santangelo, in White Plains, New York, is now closed, except for Ms. Santangelo's right to claim attorneys fees. On April 9th Judge McMahon "so ordered" a stipulation dismissing the case, but giving Ms. Santangelo the right to pursue her claim for attorneys fees:

Stipulation and Order entered April 9, 2007, dismissing case with prejudice except for issue of defendant's entitlement to attorneys fees*

RIAA Lawsuit Decision Matrix

Thursday, March 29 12:00 AM ET
By Brian Briggs

BBspot has obtained secret documents which RIAA lawyers use to determine whether to file a lawsuit against a copyright violator. These documents give insight into the RIAA's decision-making process, and could help people avoid lawsuits in the future. We offer these documents as a public service.

George Ziemann of AzOz Music Advises College Students: Don't be a "Chump"

Interesting opinion piece on AzOz:

Before You Pay the RIAA...

By George Ziemann -- March 24, 2007

There's a reason the RIAA is offering a "discount" on this year's series of extortion demands from college students. They want to get as many chumps as possible to roll over and fork up cash and they need for you to do it right away because their window of opportunity is closing. The jig is almost up.

A couple of days ago, there were two Slashdot articles which appeared, concerning two separate cases wherein the RIAA is about to be spanked -- Deborah Foster and Patti Santangelo. If you follow the links, pay particular attention to the comments by NewYorkCountryLawyer, which is Ray Beckerman.

Foster already "won" her case in the sense that the RIAA gave up. Foster wasn't going to roll over and she was close to having a trial. Since the RIAA really had no evidence in the first place, they dismissed the case to avoid trying to convince a jury their flimsy version of reality. It was dismissed with prejudice, which means the RIAA failed to prove its case and they can't come back and accuse her of the same offense later.

The judge also ruled that the RIAA had to pay Foster's attorney's fees. When the RIAA saw the bill, they said it was too high. The judge said something to the effect of, "Oh really? How much did you spend?" To this query, the RIAA has responded by a) ignoring it for a while, b) telling the judge he made a mistake in awarding attorney fees in the first place, and c) offered their billing records as long as the court agrees they're top secret and no one can look at them.

Complete article.

University of Maine Refuses To Forward RIAA Letters to Its Students - WE LOVE YOU!!!

Following the lead of the University of Wisconsin, now the University of Maine has similarly refused to forward the RIAA's collection letters. See this report from The Maine Campus:

UMS refuses to hand student info to RIAA
Tony Reaves
Issue date: 3/26/07 Section: News

The University of Maine System has refused a request from the Recording Industry Association of America to produce names of students who allegedly downloaded copyrighted materials.

The system has also opted not to forward the RIAA's pre-litigation letters offering settlements to those students, although the schools those students attend will inform their students of the letters and give them a chance to pick up the letters if they so choose.

At the University of Maine, students with pending RIAA lawsuits were told on Friday.

"It's not the university's role to, in effect, serve papers on our students for another party," John Diamond, spokesman for the university system, said of the decision.

Diamond said the RIAA's request for student information asks the system to violate the Family Educational Rights and Privacy Act, which bars the UMS from divulging information not considered public.

Complete article

RIAA hates the kids!!

p2pnet.net reports that the RIAA has sent 405 more blackmail letters, adding to its hitlist an additional 23 universities, including Boston University (50 pre-litigation settlement letters), Columbia University (20), Dartmouth College (11), DePaul University (18), Drexel University (20), Ferris State University (17), Ithaca College(20), Purdue University (38), University of California - Berkeley (19), University of California - Los Angeles (21), University of California - Santa Cruz (17), University of Maine system (27), University of Nebraska - Lincoln (25), University of Wisconsin system (66, including the following individual campuses: Eau Claire, Madison, Milwaukee, Parkside, Platteville, Stevens Point, Stout, and Whitewater), Vanderbilt University (20), and Virginia Polytechnic Institute & State University (16). This follows on the heels of the offensive it launched last month targeting 400 students at 13 institutions.

Via: Recordingindustryvpeople

New Contested Case in Brooklyn, Arista v. Finkelstein; Defendant Counterclaims, RIAA Moves to Dismiss Counterclaims

In a new contested case in Brooklyn, Arista v. Finkelstein, the defendant has counterclaimed for a declaratory judgment of non-infringement and for damages based on plaintiffs' copyright misuse. The RIAA has filed a request for premotion conference in contemplation of a motion to dismiss both counterclaims.

Answer and Counterclaims*
March 8, 2007, Letter of Richard Guida to Judge Trager*
March 15, 2007, Letter of Richard Altman to Judge Trager*

Mr. Finkelstein is represented by Richard Altman of Manhattan.

* Document published online at Internet Law & Regulation

EZ RIAA: ShareNGo

RIAA has unveiled P2PLawsuits.com, its new online payment web site for pre-lawsuit settlement. If you're sued for copyright infringement, just enter your case and pay by credit card or check. The settlement amount is discounted if paid online.

RIAA has renewed its consumer lawsuit push in recent communications with ISPs and colleges. There is no word whether RIAA has also talked with P2P software developers to embed the online payment option directly into their file sharing software.

The site's FAQ does a masterful job in obfuscating the weak evidence of such lawsuits. For example:

What evidence prompts a lawsuit?

If you've been sued, it is because you have been identified as uploading or downloading copyrighted music without authorization.

Not true. If you've been sued it's because an IP address belonging to you was reported by your ISP. That's a long way from identifying the recipient of the lawsuit as the actual user that uploaded or downloaded the music.

If I have Wi-Fi at home, how can you be sure it was me who did the downloading?

The fact that a wireless connection is involved does not mean that the individual engaging in copyright infringement cannot be identified. Cases are routinely pursued where a wireless connection is involved.

This is especially rich, RIAA indeed has pursued such cases. And lost.

Defendant Opposes RIAA Reconsideration Motion in Capitol v. Foster

In Capitol v. Foster, Ms. Foster has filed papers opposing the RIAA's motion for the Court to "reconsider" its decision granting Ms. Foster's motion for attorneys fees:

Defendant's Objections to RIAA's "Reconsideration" Motion*

* Document published online at Internet Law & Regulation

Via: Reordingindustryvspeople

P2Pextortion.com sends up p2plawsuits.com

An anonymous BB reader has created "p2pextortion.com," a send-up of the RIAA's p2plawsuits.com. He writes, "If you compare it to p2plawsuits.com, you will see that it is almost a sentence for sentence reinterpretation, with decoding of legalese and making worst case scenario examples, along with links to supporting posts by yourself, TechDirt, Lessig, and others. The 'Pay Us' link goes to the EFF donation landing page. I am a little worried about them coming after me, even though parody is protected speech, but you do not need to give me credit, just say it is anonymous."

I am being sued? By who?#
In this case the plaintiffs are the record labels and their affiliates and subsidiaries, otherwise known as the "Big Four." We are just their paid henchmen. We do whatever we can within our legal (not moral) means that are in our interest, and then say that it is in their interest.#

Isn't it the RIIAHA that is suing me?#
No. The Big Four who are in "The Family" know as Recording Industry Idiotic Ass Holes of America (RIIAHA), and the RIIAHA lets the members of the family find the next "opportunity" to support their dying business model. #

I am a hard working college student, trying to get an education so I can contribute to the GDP, to help raise my standard of living, and increase the share of educated people in the US. Why are you going after me?#
As it turns out, going after families, kids and grandmothers is bad PR. If we can go after individual college students who are notorious for using p2p applications, we save ourselves a little heat. Besides, your parents are most likely in a high income bracket, and they can bail you out. Targeting college students makes business sense.#

RIAA Moves to Dismiss Counterclaims in Lava v. Amurao

In Lava v. Amurao in White Plains federal court, the RIAA has moved to dismiss the defendant's counterclaims for (a) a declaratory judgment of non-infringement and (b) copyright misuse:

Plaintiff's Memorandum of Law in Support of Motion to Dismiss Counterclaims*
Exhibit A to Plaintiff's Memorandum of Law in Support of Motion to Dismiss Counterclaims*
Exhibit B to Plaintiff's Memorandum of Law in Support of Motion to Dismiss Counterclaims*

Defendant is represented by Richard A. Altman of Manhattan.

Similar RIAA motions have been denied in Capitol v. Foster in Oklahoma and granted in Interscope v. Duty in Arizona.

* Document published online at Internet Law & Regulation

HELP EFF Support the FAIR USE ACT!!! NOW!!!

Reps. Rick Boucher and John Doolittle’s FAIR USE Act [PDF] would remove some of the entertainment industry’s most draconian anti-innovation weapons and chip away at the Digital Millennium Copyright Act’s (DMCA) broad restrictions on fair use. Take action now and tell Congress to help restore balance in copyright now.(bottom of page)

The FAIR USE Act would limit the availability of statutory damages for secondary liability and allow innovators to make more reasonable business decisions about manageable levels of legal risk. Meanwhile, copyright owners could still get injunctions and actual damages for harm suffered, putting them in no worse a position than civil litigants in most other areas.

The bill would also codify the Supreme Court's "Betamax doctrine" as it pertains to hardware devices, making clear that manufacturers cannot be held liable based on the design of technologies with substantial non-infringing uses.

Finally, the bill would loosen the grip of the DMCA, which restricts circumvention of digital rights management (DRM) restrictions even for lawful uses. The FAIR Use Act adds 12 exemptions, including the ability to circumvent for classic fair use purposes like news reporting, research, commentary, and criticism.

Broader DMCA and copyright reform remains absolutely necessary, but, if passed, this bill would be a big first step in the right direction. Take action to support it now.

Steve Jobs: DRM Is Bad for Consumers, Innovators, *and* Artists

Apple’s Steve Jobs publicly threw down this gauntlet: “If the big four music companies would license Apple their music without the requirement that it be protected with a DRM, we would switch to selling only DRM-free music on our iTunes store… Apple will embrace this wholeheartedly.”

Why should the labels listen?

* DRM is bad for consumers: “[A] world where every online store sells DRM-free music encoded in open licensable formats … is clearly the best alternative for consumers.”

* DRM is bad for innovation: “If [DRM] requirements were removed, the music industry might experience an influx of new companies willing to invest in innovative new stores and players.”

* DRM is bad for artists: “So if the music companies are selling over 90 percent of their music DRM-free [as audio CDs], what benefits do they get from selling the remaining small percentage of their music encumbered with a DRM system? There appear to be none…. [More innovation in stores and players spurred by DRM-free downloads] can only be seen as a positive by the music companies.”

Jobs isn’t the only music service provider to invite an end to music download DRM — Yahoo!’s Dave Goldberg has long urged the labels to remove the restrictions, and Real’s Rob Glaser said last month that “DRM-free purchases is an idea in ascendance and whose time has come.”

We agree wholeheartedly with Jobs, since EFF has been making exactly the same points for several years now. As a first step in putting his music store where his mouth is, we urge him to take immediate steps to remove the DRM on the independent label content in the iTunes Store. Why wait for the major record labels? Many independent labels and artists already recognize that DRM is a dumb idea for digital music, as demonstrated by the availability of their music on eMusic. Apple should let them make that music available without DRM in the iTunes Store now.

There are also bigger lessons here for policymakers. The harm done by DRM could be reduced by reforming the DMCA to allow the evasion of DRM for lawful purposes. Moreover, Jobs’ remarks are another reason for policymakers to reject proposed government DRM mandates, which would only serve to further harm innovation, consumers, and artists. Clearly what’s needed in the digital music world is less, not more, DRM.

Steve Jobs: DRM Is Bad for Consumers, Innovators, *and* Artists

Apple’s Steve Jobs publicly threw down this gauntlet: “If the big four music companies would license Apple their music without the requirement that it be protected with a DRM, we would switch to selling only DRM-free music on our iTunes store… Apple will embrace this wholeheartedly.”

Why should the labels listen?

* DRM is bad for consumers: “[A] world where every online store sells DRM-free music encoded in open licensable formats … is clearly the best alternative for consumers.”

* DRM is bad for innovation: “If [DRM] requirements were removed, the music industry might experience an influx of new companies willing to invest in innovative new stores and players.”

* DRM is bad for artists: “So if the music companies are selling over 90 percent of their music DRM-free [as audio CDs], what benefits do they get from selling the remaining small percentage of their music encumbered with a DRM system? There appear to be none…. [More innovation in stores and players spurred by DRM-free downloads] can only be seen as a positive by the music companies.”

Jobs isn’t the only music service provider to invite an end to music download DRM — Yahoo!’s Dave Goldberg has long urged the labels to remove the restrictions, and Real’s Rob Glaser said last month that “DRM-free purchases is an idea in ascendance and whose time has come.”

We agree wholeheartedly with Jobs, since EFF has been making exactly the same points for several years now. As a first step in putting his music store where his mouth is, we urge him to take immediate steps to remove the DRM on the independent label content in the iTunes Store. Why wait for the major record labels? Many independent labels and artists already recognize that DRM is a dumb idea for digital music, as demonstrated by the availability of their music on eMusic. Apple should let them make that music available without DRM in the iTunes Store now.

There are also bigger lessons here for policymakers. The harm done by DRM could be reduced by reforming the DMCA to allow the evasion of DRM for lawful purposes. Moreover, Jobs’ remarks are another reason for policymakers to reject proposed government DRM mandates, which would only serve to further harm innovation, consumers, and artists. Clearly what’s needed in the digital music world is less, not more, DRM.

RIAA Student Extortion Letters Online at p2pnet

RIAA Student Extortion Letters Online at p2pnet

The RIAA's new "Student Extortion Letters" are now available online. This is part of the big 4 record labels' attempt to get colleges and universities to act as their enforcers and collection agents.

Thanks to "alter_fritz" for the news tip.

Via: RecordingIndustryvspeople

BIG NEWS (For me)

So a friend of mine was being sued by a few of these recording companies. I initially took the case knowing I would be in over my head.

Thanks to the help of my former boss and esteemed colleague Joseph D. Nohavicka (Bronx, NY) we were able to assist my friend and take the first step towards defending this case.

Well the answer is finally in and can be viewed here (Sitaras Answer)

This action was initiated against Mr. Sitaras in Brooklyn Federal Court. I will keep you updated as the case progreses.

My utmost gratitude also goes out to Mr. Ray Beckerman over at Recording Industry Vs. People

Mr. Beckerman has been a great resource to me throughout this process as well as a great supporter and friend of this site. Mr. Beckerman is an attorney here in New York and is a key figure in the defense against these P2P file sharing lawsuits. I would highly recommend that any reader of this site visit his as well if you haven't already.

Elektra v. Barker "Making Available" Oral Argument Now Available Online

A transcript of the January 26th oral argument of defendant's dismissal motion, before Judge Kenneth M. Karas, in Elektra v. Barker, which dealt, among other things, with the issue of whether or not "making available" is a copyright infringement, is now available online:

Transcript of January 26, 2007, Proceedings, Elektra v. Barker 1:05-cv-7340 KMK (USDC, SDNY)*

(Ed. note:The transcript was purchased and made available to us by "A Friend of the Fight". Thank you, "Friend".-R.B.)

* Document published online at Internet Law & Regulation

Do As I Say, Not As I Do: Part Two

by Marc on February 13, 2007

I earlier reported on Warner Music CEO Edgar Bronfman admitting that his kids are music pirates who have downloaded unauthorized files. He said it was a family matter.

That statement has come full circle. RIAA lawsuit defendant Robert Santangelo wants to know why keeping it in the family is good enough for the CEO who should know better, but not for him.

According to his countersuit:
"Plaintiffs have crafted at least two additional and alternative forms of damages, which forms have not been offered to this Defendant, even though similarly situated. One alternative, explicated by Warner Music's CEO, Edgar Bronfman, is for a parent to talk to his or her children: 'I explained to them [his children] what I believe is right, that the principle is that stealing music is stealing music. Frankly, right is right and wrong is wrong, particularly when a parent is talking to a child. A bright line around moral responsibility is very important. I can assure you they no longer do that.' As to what else he did to them, he responded, 'I think I'll keep that within the family.' Plaintiffs have failed and refused to offer this Defendant the same form of damages."

http://www.p2p-weblog.com/

Judge Gives RIAA Until Thursday March 1st to Respond to Motion to Compel Turnover of RIAA's Lawyers' Billing Records in Capitol v. Foster

In Capitol v. Foster, where the RIAA has sought "discovery" into the reasonableness of Ms. Foster's attorneys fees, even though the RIAA (a) already has all of Ms. Foster's lawyer's billing records, and (b) has for the past year been refusing to provide Ms. Foster's attorney their own attorneys' billing records, the Judge has given the RIAA until Thursday, March 1st, to respond to the motion Ms. Foster's attorney made last week to compel the RIAA to turn over all of its lawyers' billing records on the case:

February 26, 2007, Order, Directing Plaintiffs to Respond to Defendant's Motion to Compel by March 1, 2007*

* Document published online at Internet Law & Regulation

By: Ray Beckerman

March is Boycott RIAA month

Alright, we've been following the RIAA's increasingly frequent affronts to privacy and free speech lately, and it's about time we stopped merely bitching and moaning and did something about it. The RIAA has the power to shift public policy and to alter the direction of technology and the Internet for one reason and one reason alone: it's totally loaded. Without their millions of dollars to throw at lawyers, the RIAA is toothless. They get their money from us, the consumers, and if we don't like the way they're behaving, we can let them know with our wallets.

With that in mind, Gizmodo is declaring the month of March Boycott the RIAA month. We want to get the word out to as many people as humanly possible that we can all send a message by refusing to buy any album put out by an RIAA label. Am I saying you should start pirating music? Not at all. You can continue to support the artists you enjoy and respect in a number of ways.

Firstly, I encourage everyone to purchase music from unsigned bands and bands on independent record labels. There are tons of great artists out there, many of which you're probably already a fan of, that have nothing to do with the RIAA. Buy their records at eMusic, an online store that sells independent tunes in beautiful, DRM-free MP3 format.

Secondly, you can still support RIAA-signed bands without buying their music. Go see them live and buy their merchandise; they get a hell of a lot more money from that then they do from album sales. And hey, you could benefit from getting out more, couldn't you?

If you are unsure whether or not an album is put out by an RIAA label, the handy RIAA Radar will clear everything up for you. They have both a search engine and a great bookmarklet, so be sure to get yourself hooked up.

Let me just reiterate that we are not saying you should stop buying music and start pirating everything. We need to send a message with our wallets to the RIAA, and that message will only be stronger if we show support for musicians without your money making its way to the lawyer fund.

So come on, make next month one to remember. Let's stand together and let the RIAA know that yes, we are paying attention and no, we aren't going to put up with their unethical practices any longer. –Adam Frucci

Colleges Struggle to Cope With Flood of Copyright Complaints

The major record labels are sending thousands more copyright nastygrams to colleges regarding student file sharing this year. Of course, file sharing continues unabated, and these P2P-related notices will simply push fans to use other readily-accessible technologies that the RIAA can't easily monitor -- copying music through iTunes over the campus LAN, swapping hard drives and USB flash drives, burning recordable DVDs, and forming ad hoc wireless networks.

So the RIAA's strategy still won't stop file sharing, but it certainly will cause collateral damage to academic freedom, free speech, and privacy. In a recently released report, the Brennan Center lays out what that cost looks like today based on interviews with representatives from 25 service providers including 10 from universities. Universities are already being forced to waste substantial resources on doing the RIAA's dirty work. Flooded with machine-generated complaints, schools are unable to evaluate the merits of particular complaints. While lacking procedural safeguards to make sure students wrongly accused of infringement are not penalized, many schools have adopted stricter penalties than the law requires. Schools have also adopted network monitoring and filtering tools that interfere with legitimate expression.

The increase in P2P-related notices stands only to make matters worse. The RIAA's Cary Sherman states that the increase in the notices is "something we feel we have to do," but blanket licensing provides a clear alternative to blanket lawsuits. Take action now to help stop the lawsuit campaign.
Posted by Derek Slater at

More antics in Capitol v. Foster

RIAA Refuses to Turn Over Its Attorneys Billing Records in Capitol v. Foster; Debbie Foster Moves to Compel

In Capitol v. Foster, in Oklahoma, the RIAA has refused to turn over its attorneys billing records, although Ms. Foster had demanded those records almost a year ago.

Citing caselaw which establishes that, in connection with an attorneys fees motion, the fees spent by the non-prevailing party are relevant to the reasonableness of the prevailing party's fees, Ms. Foster has now made a motion to compel production of those records.


Defendant's Motion to Compel Production of RIAA's Attorneys' Billing Records*

RIAA uses p2p for video scam

p2pnet.net News Special:- Let me preface this with some background.

My name is Bill Evans. I founded the original Boycott-RIAA.com website in 2000. I later sold it and continued to run it for a couple of more years before I left. In that time, I did over 100 radio interviews, appeared on Tech TVs Music wars, attended conferences such as The Future of Music Coalitions Policy Summit, SXSW (South by Southwest).

In addition, I've met with Rick Boucher, his Legislative Aide for Internet Affairs at the time, and came to know people in and out of the business who were as concerned as I was with the state of music affairs, artist rights and consumer rights.

To me one of the highlights was when John Perry Barlow approached me after the Tech TV "Music Wars" special and shook my hand and told me � Keep up the good work�.

I�ve met Hilary Rosen face to face. I�ve met Cary Sherman face to face. I�ve had knock down drag out verbal fights with the RIAA�s �Internet Evangelist� at the time Karen Allen, to the point that it was considered a moment to remember by many in the industry. It was cordial, and humorous. My firsts words to her (after looking at her from head to toe and back) were "You don't look like the devil." She was all of maybe 5'1" tall and maybe weighed 100 lbs. (I'm nearly 6'2" and about 230.

They know who I am. Keep that in mind.

A while back p2pnet ran an article about �CampusDownloading.com� an RIAA propaganda web site. Needless to say the video contained on the website was of full of half truths, innuendo, and misleading statements of fact. The quality of the video on their website was laughable, (they really should have hired a video pirate to rip it).

As I result, I went to the Campus Downloading website and placed an order for the free DVD. The page on which you order the DVD implies its for use on campus. Well, I live in a college town (Virginia Tech) I didn�t represent that the DVD was for use on campus, but for personal use.

"I want to show it to my neighbors," I said.

This week the DVD arrived Priority Mail, along with twoi four-color posters, and a letter on RIAA letterhead. The address label had the return address of the RIAA. In addition to the cost of the DVD, posters, and letter, the postage was $4.05, plus a bubble pack envelope.

The RIAA spent at least $10 getting the Campus Downloading DVD to me, not to mention staff time. It was shipped from Washington, DC, and the letter, from Paige Ralston, is extremely interesting.

It gives me permission to use Campus Downloading DVD in,"the way you see fit, including making however many copies necessary."

It goes on to request that I stream the DVD video from my own site rather than from theirs. That'll save them a few bucks, and it'll also get me doing their work for them for free and paying their broadband costs too ;p

They claim, "If thousands of students log onto the site at once," they could, "experience difficulty in viewing the video". And wouldn't that be a crying shame?

Ironic isn't it? The very thing the RIAA doesn't want you to do with music, is the very thing they're asking you to do ...

... Copy it and share it.

I've included photos of the package to let you see what's in it. And wouldn't it be interesting if everyone ordered a copy of the DVD?

We'd could cost them a fortune.

I urge every student to order a copy.

Be honest, tell them it's for you.

If they run out, they need to get more made.

And the videos do have their uses.

They make very pretty coasters, great targets, and Shoot, you might even want to sell them on ebay as collector items.

And they really do have potential uses in classrooms - as examples of deceptive advertising and propaganda.

Bill Evans - p2pnet

Study: P2P effect on legal music sales "not statistically distinguishable from zero"

A new study in the Journal of Political Economy by Felix Oberholzer-Gee and Koleman Strumpf has found that illegal music downloads have had no noticeable effects on the sale of music, contrary to the claims of the recording industry.

Entitled "The Effect of File Sharing on Record Sales: An Empirical Analysis," the study matched an extensive sample of music downloads to American music sales data in order to search for causality between illicit downloading and album sales. Analyzing data from the final four months of 2002, the researchers estimated that P2P affected no more than 0.7% of sales in that timeframe.

The study compared the logs of two OpenNAP P2P servers with sales data from Nielsen SoundScan, tracking the effects of 1.75 million songs downloads on 680 different albums sold during that same period. The study then took a surprising twist. Popular music will often have both high downloads and high sales figures, so what the researchers wanted was a way to test for effects on albums sales when file-sharing activity was increased on account of something other than US song popularity. Does the occasionally increased availability of music from Germany affect US sales?

The study looked at time periods when German students were on holiday after demonstrating that P2P use increases at these times. German users collectively are the #2 P2P suppliers, providing "about one out of every six U.S. downloads," according to the study. Yet the effects on American sales were not large enough to be statistically significant. Using this and several other methods, the study's authors could find no meaningful causality. The availability and even increased downloads of music on P2P networks did not correlate to a negative effect on music sales.

"Using detailed records of transfers of digital music files, we find that file sharing has had no statistically significant effect on purchases of the average album in our sample," the study reports. "Even our most negative point estimate implies that a one-standard-deviation increase in file sharing reduces an album's weekly sales by a mere 368 copies, an effect that is too small to be statistically distinguishable from zero."

The study reports that 803 million CDs were sold in 2002, which was a decrease of about 80 million from the previous year. The RIAA has blamed the majority of the decrease on piracy, and has maintained that argument in recent years as music sales have faltered. Yet according to the study, the impact from file sharing could not have been more than 6 million albums total in 2002, leaving 74 million unsold CDs without an excuse for sitting on shelves.

So what's the problem with music? The study echoes many of the observations you've read here at Ars. First, because the recording industry focuses on units shipped rather than sold, the decline can be attributed in part to reduced inventory. Gone are the days when Best Buy and others wanted a ton of unsold stock sitting around, so they order less CDs. The study also highlighted the growth in DVD sales during that same period as a possible explanation for why customers weren't opening their wallets: they were busy buying DVDs.

RIAA's New Settlement Website Promoting P2P File Sharing Clients?

from the nice-work,-fellas dept

While lots of folks have been talking about the RIAA's latest attempt to pressure ISPs into handing over subscriber info, Eliot Van Buskirk over at Wired noticed something interesting. The domain name that the RIAA registered for their new "pre-lawsuit" settlement packages (where you get a discount for not pointing out that their evidence is flimsy), it appears that the RIAA has put up a parked page that is full of ads pointing to all sorts of file sharing programs, many that include adware and spyware. As Eliot notes: "does this mean the RIAA can be sued for contributory infringement?" Considering that the entertainment industry was just pissed off at the Google ads on a different site for similar reasons -- you'd think they might want to consider suing themselves here. Of course, it seems that someone over at the RIAA got wise to this and has now switched off the advertising on the domain. Still, I wonder how much money they made promoting P2P programs...

Via: techdirt

Leaked RIAA Letter Asks ISPs for Help in Thwarting File Sharing

Tuesday, 13 February 2007

Topic: News

Ray Beckerman over at Recording Industry vs. The People posted a letter leaked to him presumably by someone who works at an ISP, in which the RIAA asks ISPs for help in both tracking down subscribers suspected of file sharers and convincing them to settle before their cases go to trial.

In light of recent news (broken on Listening Post) that Debbie Foster succeeded in winning legal fees from the RIAA after having their lawsuit against her thrown out of court, this letter could represent the RIAA hedging its bets against similar cases going to trial in the future. The organization wants ISPs to make it clear to their subscribers that if they settle out of court with the RIAA, rather than seeing the case to trial, the cost of their settlement would be discounted $1,000.

That's not the only way in which the letter reveals the RIAA is trying to work with ISPs in order to keep these cases out of court. Normally, the way a P2P lawsuit works is: an RIAA member label spots one of their songs being shared, logs the sharer's IP address, brings a lawsuit against the (still unknown) "John Doe" defendent, and then subpoenas the ISP in order to find out who the particular John Doe is.

Instead of this circuitous route through the legal system, the leaked letter reveals, the RIAA wants ISPs to send form letters to the John Does themselves, asking that they turn themselves in to the RIAA and commence the settlement process. Basically, the leaked letter reveals that the RIAA is sick of having to jump through legal hoops that protect individuals from being policed by a non-governmental organization.

VIA: P2Pweblog.com

Lime Wire Sues RIAA for Antitrust Violations

In Arista v. Lime Wire, in Manhattan federal court, Lime Wire has filed its answer and interposed counterclaims against the RIAA for antitrust violations, consumer fraud, and other misconduct. Lime Wire alleged that the RIAA's goal was simple: to destroy any online music distribution service they did not own or control, or force such services to do business with them on exclusive and/or other anticompetitive terms so as to limit and ultimately control the distribution and pricing of digital music, all to the detriment of consumers. (Counterclaim, paragraph 26, page 18).

This case is but one part of a much larger modern conspiracy to destroy all innovation that content owners cannot control and that disrupts their historical business models.(Counterclaim, paragraph 28, page 18).

Lime Wire has demanded a trial by jury.

Answer and Counterclaim of Lime Wire defendants**

Document published online at Internet Law & Regulation

Via: http://recordingindustryvspeople.blogspot.com

Ms. Lindor Opposes RIAA Motion to Compel Production of Her Son's Computer

Ms. Lindor Opposes RIAA Motion to Compel Production of Her Son's Computer

In UMG v. Lindor, in Brooklyn, Ms. Lindor has filed opposition papers to the motion the RIAA has made to compel the production of her son's computer and listening devices:

February 7, 2007, Declaration of Ray Beckerman*
Exhibit A (February 7, 2007, Order and Decision in Capitol Records v. Debbie Foster)*

* Document published online at Internet Law & Regulation

Going Up: Movie, TV and Music Downloads

eMarketer projects that digital media content spending will grow from $1.3 billion in 2005 to $7.8 billion in 2010. Online video is small now but will take off as more legitimate content is made available by the major studios and there are more distribution channels and retail stores carrying it.

The breakdown:

US 2005 Revenues (million)
$1,104 Digital Music
$199 Online TV
$11 Digital Movies

Projected US 2010 Revenues (million)
$4,950 Digital Music
$2,191 Online TV
$651 Digital Movies

Our note: Wait I thought this poor little industry was losing money every year?

Grokster + DSU = ?

December 15, 2006

EFF’s Fred von Lohmann, post-Grokster: “A variety of new digital technologies are advertised and promoted for uses that the technology vendors believe to be fair uses. For example, Time Trax promotes its technology for recording satellite radio, Mercora for recording music from webcasts, and Sling Media for transmitting your TiVo’d TV shows to yourself over the Internet….

“Is it inducement if you reasonably, but incorrectly, believed that the use for which you promoted your product was covered by fair use (or any other copyright exception)?”

The Federal Circuit, today (via Jason): “Grokster, thus, validates this court’s articulation of the state of mind requirement for inducement. See Manville, 917 F.2d at 544. In Manville, this court held that the ‘alleged infringer must be shown . . . to have knowingly induced infringement,’ 917 F.2d at 553, not merely knowingly induced the acts that constitute direct infringement. This court explained its ‘knowing’ requirement:

‘It must be established that the defendant possessed specific intent to encourage another’s infringement and not merely that the defendant had knowledge of the acts alleged to constitute inducement. The plaintiff has the burden of showing that the alleged infringer’s actions induced infringing acts and that he knew or should have known his actions would induce actual infringements.’”

Original article: HERE

NY Teen in Piracy Lawsuit Accuses Record Companies of Collusion

WHITE PLAINS, N.Y. (AP) -- A 16-year-old boy being sued for online music piracy accused the recording industry on Tuesday of violating antitrust laws, conspiring to defraud the courts and making extortionate threats.

In papers responding to a lawsuit filed by five record companies, Robert Santangelo, who was as young as 11 when the alleged piracy occurred, denied ever disseminating music and said it's impossible to prove that he did.

Santangelo is the son of Patti Santangelo, the 42-year-old suburban mother of five who was sued by the record companies in 2005. She refused to settle, took her case public and became a heroine to supporters of Internet freedom.

The industry dropped its case against her in December but sued Robert and his sister Michelle, now 20, in federal court in White Plains. Michelle has been ordered to pay $30,750 in a default judgment because she did not respond to the lawsuit.

Robert Santangelo and his lawyer, Jordan Glass, responded at length on Tuesday, raising 32 defenses, demanding a jury trial and filing a counterclaim against the companies for allegedly damaging the boy's reputation, distracting him from school and costing him legal fees.

His defenses to the industry's lawsuit include that he never sent copyrighted music to others; that the recording companies promoted file sharing before turning against it; that average computer users were never warned that it was illegal; that the statute of limitations has passed; and that all the music claimed to have been downloaded was actually owned by his sister on store-bought CDs.

Santangelo also claims that the record companies, which have filed more than 18,000 piracy lawsuits in federal courts, "have engaged in a wide-ranging conspiracy to defraud the courts of the United States.''

The papers allege that the companies, "ostensibly competitors in the recording industry, are a cartel acting collusively in violation of the antitrust laws and public policy'' by bringing the piracy cases jointly and using the same agency "to make extortionate threats ... to force defendants to pay.''

The Recording Industry Association of America, which has coordinated most of the lawsuits, issued a statement saying, "The record industry has suffered enormously due to piracy. That includes thousands of layoffs. We must protect our rights. Nothing in a filing full of recycled charges that have gone nowhere in the past changes that fact.''

How to Find Fake Torrents Uploaded by the MPAA and RIAA

The MPAA, RIAA and several anti-piracy organizations are constantly trying to trap people into downloading fake torrents. These torrents are hosted on trackers that are setup to collect IP addresses of all the ‘pirates’ who try to download these files.

To make these traps more visible, Fenopy just introduced the FakeFinder. The FakeFinder lists the most popular fake torrents and the latest fake trackers. It also allows you to search for fake torrents by keyword or infohash.

The actual .torrent links for these fake files are blocked, and FakeFinder serves an informational purpose only. It is actually quite amusing to browse through these fake files and trackers. The companies that host these anti-piracy trackers came up with some interesting hostnames like “dirtydevils.cyberbox.com.br” and “bittorrent.isthebe.st“.

Although most of the IPs of these fake trackers are already blocked by blocklist software like PeerGuardian, they still manage to collect the IP addresses of thousands of users who do fall for this trap. Most torrent site admins are aware of these fakes, and remove them as soon as they are uploaded. It is kind of a paradox. On the one hand anti-piracy organizations send thousands of takedown requests to torrent sites, while they upload fake files with similar titles themselves.

Some might argue that downloading a fake file is not really a criminal offense. And yes, it is doubtful if this evidence will hold up in court. However, the job of organizations like the MPAA is to scare people, and that is often enough for them. The first thing they will probably do is send a letter to your ISP saying that you tried to download so-and-so file. And even if they take it a step further, they try to settle before these things are played out in court.

FakeFinder shows that BitTorrent site admins are trying to track down these fake torrents, and it’s a nice way to expose the darker side of anti-piracy organizations like the MPAA.

Via: Torrentfreak.com

Lawsuits Against Video-Sharing Websites Begins

Lets just Kill the Internet

Universal Music, the world’s largest record company, has launched the established media industry’s first legal action against user-generated internet sites in the wake of its distribution deal last week with YouTube, the most popular video-sharing website.

In separate lawsuits, Universal alleged that Grouper.com – recently acquired by Sony Pictures Entertainment – and Bolt.com had built up traffic by encouraging users to share music videos from its artists without their permission. In one incident, it claimed a video for the Mariah Carey song “Shake it Off” was viewed more than 50,000 times on Grouper without the company’s permission.

Via: FT.com

MySpace Installs Music Filters

Although unrelated to the lawsuits this is interesting as far as the whole copyright issue goes.

MySpace may be a favorite site for teenagers, but it's acting more and more like a grownup.

The social-networking site, now owned by News Corp., announced Monday that it is cracking down on users who post copyright music without authorization. It will use database technology from Gracenote to analyze uploaded songs and other material. Unauthorized material will be taken down, and users who repeatedly post such material will be blocked from the site.

My opinion: The "new" MySpace is going to choke itself to death. Killing the goose that laid the golden egg

From Cnet News.com: