Digital Copyright Canada

In Viacom v. YouTube , the parties are making partial summary judgment motions on the applicability of the DMCA to YouTube.

The Court has initially permitted the parties to file their documents under seal.

[Ed. note. I find it disturbing that the papers are permitted to be filed under seal. Whatever happened to "courts of record"? There is too much of this going on, and it always seems to be in RIAA/MPAA cases. It used to be virtually impossible to get things filed under seal; now it seems to be a routine matter. Now that we finally have the technology to know and share what is really going on in our courts, the parties and/or the courts seem bound and determined to take that away from us. I sincerely hope that the media who have money for such things protest. -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 UMG Recordings v. Lindor, in response to Ms. Lindor's request for (a) an order clarifying that the Court precludes her from making a motion for attorneys fees, or in the alternative (b) a pre-motion conference in connection with a planned motion for an order:

-determining the statute of limitations to have expired;
-determining her to be the prevailing party within the meaning of 17 USC 505; and
-awarding her costs, including reasonable attorneys fees,

the Court has issued an order which "restates that defendant's request for attorney's fees and costs is denied"

March 8, 2010 order denying attorneys fees
February 25, 2010, letter of Ray Beckerman to District Judge Hon. David G. Trager

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The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.-->

In Capitol Records v. Thomas-Rasset, the trial has been scheduled for October 4th.

This will be the third trial in the matter, the first verdict having been overturned due to an incorrect jury instruction, the second having been overturned due to the unreasonableness of the size of the award. This trial will relate only to the measure of damages.

Notice of Trial Date





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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, Judge Gertner has granted the RIAA's motion for costs and fees incurred in connection with its motion to compel production regarding dissemination of mp3 song files by the defendant's counsel during the lawsuit:Judge Nancy Gertner: Electronic ORDER entered granting [851] Motion for Costs and Fees Under Rule 37(a)(5). Plaintiffs request that the Court order the defense to pay the reasonable expenses they incurred in filing a motion to compel (document #842) that the Court granted on June 16, 2009. Federal Rule of Civil Procedure 37(a)(5)(A) provides that if a court grants a motion to compel a response to a discovery request, "the court must... require the party... whose conduct necessitated the motion, the... attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." An award of costs and fees to the prevailing party is mandatory unless the court finds that (1) "the movant filed the motion before attempting in good faith to obtain the... discovery without court action"; (2) "the opposing party's nondisclosure... was substantially justified"; or (3) "other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(A); see also Midland-Ross Corp. v. Ztel, Inc., 113 F.R.D. 664, 666 (D. Mass. 1987) (quoting M&D Builders, Inc. v. Peck, 109 F.R.D. 410, 411-12 (D. Mass. 1986)). The defendant has not filed an opposition to plaintiffs' motion for costs and fees, and the Court concludes that the plaintiffs' motion should be granted. As indicated in their motion to compel, the plaintiffs attempted to resolve their discovery dispute with the defendant, but the defense refused to disclose the requested information. The defense also has made little effort to show that its nondisclosure was "substantially justified." Defense counsel's terse response to plaintiffs' motion to compel merely stated that, in his personal opinion, the plaintiffs' requests were not relevant to this litigation. As indicated in this Court's June 16, 2009, order, plaintiffs' request for information relating to the defense's unauthorized distribution of the very copyrighted works on which plaintiffs' claims were based was clearly relevant to such issues as the willfulness of the defendant's conduct and the amount of damages to be awarded by the jury. Finally, the Court concludes that there are no extenuating circumstances in this case that would make the award of attorneys' fees and other costs unjust. Accordingly, the Court will hold both the defendant, Joel Tenenbaum, and his attorney, Charles Nesson, jointly and severally liable for the reasonable expenses that plaintiffs incurred in filing their motion to compel. See 8A Charles Alan Wright, Arthur Miller & Richard Marcus Federal Practice and Procedure § 2288, at 662 (2d ed. 1994) (noting that an award of reasonable expenses under Rule 37(a) may be made against both the losing party and his attorney and citing cases in which an attorney has been ordered to pay an award). The plaintiffs are ordered to file an affidavit containing an itemized statement of the expenses they incurred in filing the motion to compel by March 8, 2010. (Hourihan, Lisa) -->*-->

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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 RIAA has filed a letter opposing defendant's request for (a) a 'memorandum endorsed' order precluding an attorneys fee motion under the Copyright Act or , in the alternative (b) a pre-motion conference for an attorneys fees motion.

March 4, 2010, letter of Eve G. Burton to Hon. David G. Trager
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The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.-->

In Maverick Recording v. Harper, a case against a Texas teenager in which the trial court had held that there were triable issues concerning whether or not she could avail herself of the "innocent infringement" defense, the Fifth Circuit has reversed, and held that defendant could not invoke "innocent infringement" where she:

-had admittedly made unauthorized downloads of all of the 16 song files in question; and
-never disputed that she had "access" to the CD versions of the songs which bore copyright notices

The Court also found that the "making available" issue was irrelevant to the appeal, and that the "due process" issue as to the excessiveness of the statute's $750-per-infringed-work statutory damages had not been preserved for appeal.

5th Circuit Decision

[Ed. note. The Court's treatment of the innocent infringement defense is unsatisfactory. It appears that the Court may be misinterpreting the word "access" in the statute, following the same error committed by the Gonzalez court. The mere fact that a copy exists somewhere on the planet with a copyright notice does not preclude the "innocent infringement" defense. The defense was created to protect someone who -- like Ms. Harper -- had copied something which bore no copyright notice. The Court likewise errs in assuming, without plaintiffs' ever having proved, that the defendant had access to copies which bore the copyright notice.

I do not disagree with the proposition that the statute makes a person's lack of legal sophistication irrelevant if he or she made the infringing copy from a copy which bore the copyright notice. But that is a big "if", since it did not occur here. -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 UMG Recordings v. Lindor, Ms. Lindor has requested a pre-motion conference in connection with a planned motion for an order:

-determining the statute of limitations to have expired;
-determining her to be the prevailing party within the meaning of 17 USC 505; and
-awarding her costs, including reasonable attorneys fees.

February 25, 2010, letter of Ray Beckerman to District Judge Hon. David G. Trager

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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 a news report in the Boston Globe, the SONY BMG Music Entertainment v. Tenenbaum motion was argued yesterday, as scheduled, and decision reserved.

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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 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.-->