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

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*

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*

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.

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

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

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.

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'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

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