Category — BigMedia v. P2P Users

Text Constitutional Challenge
RIAA Response
The constitutionality of the RIAA’s claim of $750 in damages per-song, where the publisher typically receives only 70 cents per-song, is being challenged in UMG v. Lindor. Available damages are 1071 times greater than the damages suffered.

Source: Recording Industry vs. The People

Related Posts:

• Judge Allows RIAA Defendant to Argue $750-per-song Damages are Unconscionable (November 15, 2006)
• Constitutionality of $750-Per-Song Damages Challenged in UMG v. Lindor (May 4, 2006)

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Text of Bill
According to CNET, Rep. Lamar Smith, and Rep. Jim Sensenbrenner, Jr. (R-WI), backed by the content industry, is about to introduce the Intellectual Property Protection Act of 2006 which would expand the DMCA’s restrictions on software that can bypass copy protections and grant federal police more wiretapping and enforcement powers. Loosely, quoting from the article, the proposed law:

• Creates a new federal crime of just trying to commit copyright infringement. Such willful attempts at piracy, even if they fail, could be punished by up to 10 years in prison.
• Boosts criminal penalties for copyright infringement from five years to 10 years (and 10 years to 20 years for subsequent offenses). The Act targets noncommercial piracy including posting copyrighted photos, videos or news articles on a Web site if the value exceeds $1,000.
• Creates civil asset forfeiture penalties for anything used in copyright piracy. Computers or other equipment seized must be “destroyed” or otherwise disposed of, for instance at a government auction. Criminal asset forfeiture will be done following the rules established by federal drug laws.
• Says copyright holders can impound “records documenting the manufacture, sale or receipt of items involved in” infringements.
• Permits wiretaps in investigations of copyright crimes, trade secret theft and economic espionage. It would establish a new copyright unit inside the FBI and budgets $20 million on topics including creating “advanced tools of forensic science to investigate” copyright crimes.
• Amends existing law to permit criminal enforcement of copyright violations even if the work was not registered with the U.S. Copyright Office.

Source: CNet | ars technica | Professor Ed Felton | IPAC

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The failure of some Internet service providers to retain user logs for a "reasonable amount of time" is hampering investigations into gruesome online sex crimes, U.S. Attorney General Alberto Gonzales said Thursday, indicating that new data retention rules may be on the way.

Sources: ZDNet | CNet | Jurist | Red Herring

Dale's Comment: What isn't being said by Gonzales is that such "reasonable" retention would almost assuredly be used by the government for government sanctioned spying programs and the "reasonably" retained information could be used to subpoenaed by the RIAA and the MPAA to more efficiently prosecute P2P file-sharing users.

Related Posts: 

• RIAA Wants U.S. ISPs to Offer Discounted Settlements to Alleged P2P Users (February 14, 2007)
• Lawyer who Fights the RIAA Speaks Out (July 21, 2006)
• Dutch Court Rules ISPs Need Not Disclose File Swapper IDs (July 17, 2006)
• British ISP, Tiscali, Refuses BPI Request to Disconnect 17 Users (July 12, 2006)
• RIAA to Students: 'Drop out of College to Pay Settlement'
• Gonzales Calls for 'Reasonable' Data Retention (April 21, 2006)
• Warner/RIAA vs. The John Does Trial to Start May 19 (April 20, 2006)
• One Man's First Hand Account of Being Put Through Hell by the RIAA (April 14, 2006)
• How the RIAA Litigation Process Works (April 5, 2006)
• Canadian Federal Court of Appeal Reaches a Stalemate as to Whether and How Discovery of P2P Users' Identity can be compelled (May 19, 2005)
• Canadian Federal Court Rejects CRIA Motion to Disclose IP Addresses of P2P Users (March 31, 2004)

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"At the heart of the RIAA litigation process is the ex parte discovery orders obtained by the RIAA in virtually secret 'lawsuits' against a large number of "John Does". These cases are brought for the sole purpose of obtaining the names and addresses of the defendants. Once the information is obtained, the RIAA discontinues the cases, and then sues the people in separate lawsuits."

Sources: Recording Industry vs. The People | Digital Music News

• RIAA Wants U.S. ISPs to Offer Discounted Settlements to Alleged P2P Users (February 14, 2007)
• Lawyer who Fights the RIAA Speaks Out (July 21, 2006)
• Dutch Court Rules ISPs Need Not Disclose File Swapper IDs (July 17, 2006)
• British ISP, Tiscali, Refuses BPI Request to Disconnect 17 Users (July 12, 2006)
• RIAA to Students: 'Drop out of College to Pay Settlement'
• Gonzales Calls for 'Reasonable' Data Retention (April 21, 2006)
• Warner/RIAA vs. The John Does Trial to Start May 19 (April 20, 2006)
• One Man's First Hand Account of Being Put Through Hell by the RIAA (April 14, 2006)
• How the RIAA Litigation Process Works (April 5, 2006)
• Canadian Federal Court of Appeal Reaches a Stalemate as to Whether and How Discovery of P2P Users' Identity can be compelled (May 19, 2005)
• Canadian Federal Court Rejects CRIA Motion to Disclose IP Addresses of P2P Users (March 31, 2004)

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In response to Barker's Motion to dismiss, the RIAA has responded by claiming that "merely having a 'shared files folder' on one's computer, and thereby 'making files available for distribution', is in and of itself a "distribution" and a copyright infringement. I.e., even if the recordings were legally obtained, and even if no illegal copies were ever made of them, the defendant is still guilty of copyright infringement." The MPAA followed with an amicus brief in support of the RIAA. The EFF and others filed an amicus brief in opposition stating that the RIAA's argument is absurd because the entire Internet is nothing more than a giant network of hyperlinks making files available for distribution.

Sources: Recording Industry v. The People | P2PNet | ars technica

Related Posts:

• Oregon District Judge – 'Making Available' – Sufficient Grounds For Copyright Infringement (December 12, 2006)
• Elektra v. Barker: The Most Important RIAA Case in the Country? (April 18, 2006)

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Howard Knopf, who acted against CRIA in the recent Canadian file sharing litigation, has written a very good summary of CRIA’s current situation in the context of the contemporary Canadian political environment.

Source: Howard Knopf

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Recording Industry v. the People has a terrific article on the ex-parte cookie-cutter process the RIAA uses to sue its thousands of defendants. As they explain: "at the core of the whole process are: (1) the mass lawsuit against a large number of "John Does"; (2) the "ex-parte" order of discovery; and (3) the subpoenas demanding the names and addresses of the "John Does". The RIAA settlement offer is usually for $3,750, non-negotiable, and contains numerous one-sided provisions. There are several lawsuits challenging this process. Read the linked article for details.

Source: Recording Industry v. The People.

Related Posts:

• RIAA Wants U.S. ISPs to Offer Discounted Settlements to Alleged P2P Users (February 14, 2007)
• Lawyer who Fights the RIAA Speaks Out (July 21, 2006)
• Dutch Court Rules ISPs Need Not Disclose File Swapper IDs (July 17, 2006)
• British ISP, Tiscali, Refuses BPI Request to Disconnect 17 Users (July 12, 2006)
• RIAA to Students: 'Drop out of College to Pay Settlement'
• Gonzales Calls for 'Reasonable' Data Retention (April 21, 2006)
• Warner/RIAA vs. The John Does Trial to Start May 19 (April 20, 2006)
• One Man's First Hand Account of Being Put Through Hell by the RIAA (April 14, 2006)
• How the RIAA Litigation Process Works (April 5, 2006)
• Canadian Federal Court of Appeal Reaches a Stalemate as to Whether and How Discovery of P2P Users' Identity can be compelled (May 19, 2005)
• Canadian Federal Court Rejects CRIA Motion to Disclose IP Addresses of P2P Users (March 31, 2004)

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The International Federation of the Phonographic Industry (IFPI) is launching nearly 2,000 new legal actions against individuals accused of sharing copyrighted music over P2P services, including FastTrack (Kazaa), Gnutella (BearShare), eDonkey, DirectConnect, BitTorrent, Limewire, WinMX, and SoulSeek. Here we go again.

Sources: ars technica  |  Red Herring  |  CNet  |  ZDNet  |  BBC  |  silicon.com  |  The Register  |  PCWorld  |  Fox News  |  PC Pro  |  Reuters  |  PC Magazine  |  Top Tech News  |  ifpi press release
 
Dale’s Comment: Oh Goody! And we’ve seen how successful the RIAA’s suing thousands of its customers has worked over on this side of the pond now haven’t we?

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  Text of Priority v. Chan II Dismissal (March 27, 2006)
Other Court Filings

After requesting that the court dismiss an initial action it against Candy Chan, the RIAA filed suit against her teen-aged daughter Brittanny. The RIAA petitioned the court to appoint a guardian ad litem and insisted the defendant pay the guardian's fees. The court initially denied the request because it was troubled over how the guardian would be paid. The court suggested that the RIAA pay guardian fees into escrow with the ultimate determination of who was responsible for such fees to be made by the Court after trial. The court ordered the RIAA to submit a functional proposal for such an appointment and how the guardian could be paid pending the litigation's outcome. The RIAA failed to provide such a proposal.  Consequently, the court dismissed the suit against Brittany:

…Plaintiffs have failed to respond to the Court’s order to submit a functional proposal for the appointment of a guardian ad litem for Defendant. In fact, other than in the caption of Plaintiffs’ response, the Plaintiffs have not even acknowledged thatsuch an order was issued. The Court finds Plaintiffs’ failure to respond to the order inexplicable in ight of the efforts of the Court to work with the Plaintiffs in advancing this case and the fact thatPlaintiffs were ordered to provide a proposal. Accordingly, the Court concludes that Plaintiffs’failure to comply with an order of the Court justifies the dismissal of Plaintiffs’ action.

Sources: Recording Industry v. The People | P2PNet| MP3newswire.net | Wikipedia

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GERMANS risk two years in prison if they illegally download films and music for private use under a new law agreed yesterday. Anybody who downloads films for commercial use could be jailed for up to five years.

Sources: Times Online  |  Nam News  |  Irish Independent  |  ars technica

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"…[W]here the RIAA made a motion to compel complete access to Tanya Andersen's computer to make a "mirror image" of her hard drive, federal judge Donald Ashmanskas declined to allow that, and instead granted Ms. Andersen's request to appoint a neutral expert who would be given a specific list of files and an identified protocol to review her computer."

Source: Recording Industry vs. The People | P2PNet

• RIAA Drops Open WiFi Case – Virgin v. Marson (August 1, 2006)
• RIAA Motion to Compel Hard Drive Inspection Denied – Neutral Inspector Appointed (March 17, 2006)
• Paramount Sues Man for Piracy – But Can't Find any Evidence (December 14, 2005)

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French consumers are not entitled to make personal copies of DVDs, even if they don’t distribute them, France’s highest court said today in a victory for film companies such as Vivendi Universal SA.

Sources: Bloomberg  |  PC Pro  |  afterdawn.com  |  CD Freaks  |  TMCNet  |  DRM Watch

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A French court has dismissed a lawsuit against an alleged file sharer for both downloading and uploading.

Source: Michael Geist | ars technica

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Text of Amended Defense and Countersuit
Tanya Andersen’s defense and counterclaim against the RIIA was amended. Since the original post the RIAA has made a motion to dismiss Ms. Andersen’s counterclaim.

Source: Recording Industry vs The People

Related Stories:

• 42 Year Old, Disabled, Single Mother Amends Defense and Countersuit Against the RIAA (January 27, 2006)
• 42 Year Old, Disabled, Single Single Mother Countersues RIAA Under RICO Act (October 1, 2005)

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Paramount traces an eDonkey user to a specified IP Address but searches of the user's computers reveal no evidence of piracy. Man claims anyone could have used his unsecured wireless connection to use eDonkey.

Sources: Channel 5 Cincinnati | P2PNet

Note: While this story highlights the potential perils of leaving a WiFi Router open for use by neighbours, leaving an Internet connected WiFi router open to public use may set up an affirmative defence to piracy allegations.

Related WiFi Posts:

• Illinois WiFi 'Freeloader' fined US$250 (March 23, 2006)
• 'Stealing' Your Neighbor's Net (August 10, 2005)
• Florida Man Charged with Felony for Accessing Third-party WiFi (July 7, 2005)

Related P2P Legal Discovery Posts:

• RIAA Drops Open WiFi Case – Virgin v. Marson (August 1, 2006)
• RIAA Motion to Compel Hard Drive Inspection Denied – Neutral Inspector Appointed (March 17, 2006)
• Paramount Sues Man for Piracy – But Can't Find any Evidence (December 14, 2005)

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The IFPI has launched 2,100 new legal cases in Europe, Asia and South America.

Source: ZDNet – Reuters

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PDF: RIAA v. The People
It’s been two years since the RIAA started suing music fans who share songs online. Thousands of Americans have been hit by lawsuits, but both peer-to-peer (P2P) file sharing and the litigation continue unabated.

Source: EFF

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A Hong Kong man is convicted of copyright infringement for sharing movies using BitTorrent’s peer-to-peer file sharing technology

Source: ZDNet

Related Posts:

• Another BitTorrent User Conviction (September 12, 2006)
• First BitTorrent User Convicted (October 5, 2005)

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Text of Defense and Countersuit
In response to the RIAA’s lawsuit against her, Tanya Andersen is suing Apple for RICO violations, fraud, invasion of privacy, abuse of process, electronic trespass, violation of the Computer Fraud and Abuse Act, negligent misrepresentation, deceptive business practices and the, “original”? tort of “outrage”.

Sources: P2PNet | Wired | Davis & Co. LLP | Recording Industry vs The People

Related Stories:

• 42 Year Old, Disabled, Single Mother Amends Defense and Countersuit Against the RIAA (January 27, 2006)
• 42 Year Old, Disabled, Single Single Mother Countersues RIAA Under RICO Act (October 1, 2005)

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Text of Decision In BMG Canada v. John Doe 2005 FCA 193; [2005] F.C.J. No. 858 (CA) (QL), the Canadian Federal Court of Appeal considered a prior federal court ruling denying the Canadian Recording Industry Association's ("CRIA") request to compel ISPs to disclose of the identity of peer to peer (P2P) file sharing users.

The Court of Appeal disagreed with the lower court's ruling on the following basis:

• Proper Test: It determined that the proper test to be applied in determining whether such disclosure can be compelled is whether a bona-fide claim against the proposed defendants is made out and not, as the lower court determined, whether a prima facie case (a higher standard) has been made out.
• Findings on Infringement: The Court of Appeal determined that the lower court should not, at that stage of the preceding, have made conclusions as to what would or would not constitute infringement and made it clear that if the case proceeded further "it should not be done on the basis that the findings to date on the issue of infringement have been made". The court suggested several basis upon which the lower court's infringement (or lack there of) conclusions could be challenged. Accordingly, the Court of Appeal held that the lower court's finding that "the downloading of a song for personal use does not amount to infringement" must be ignored in any future consideration of the case.

However, the Court of Appeal did agree with the lower court with respect to the importance of balancing the privacy interests of ISP customers with the need protect intellectual property rights. In future such cases CRIA must:

• show that it has a bona fide claim” against the proposed defendant;
• the claim must be based on admissible, non-hearsay, evidence;
• there should be clear evidence to the effect that the information cannot be obtained from another source such as the operators of the P2P services in question;
• "…[T]he public interest in favour of disclosure must outweigh the legitimate privacy concerns of the person sought to be identified if a disclosure order is made”.
• The information on which a request for identification iis made (e.g., IP address) must be timely; and
• The plaintiffs must not collect more personal information than necessary for the purpose of their claim.

Dale's Comment: It is not clear at this point whether, as the lower court judge concluded, downloading music off the Internet through P2P services constitutes copyright infringement or is permissible under the private copying exemption contained in section 80(1) of the Copyright Act. What is clear is that the evidentiary standard by which such disclosure can be compelled is much higher than CRIA had originally anticipated and certainly higher than what the U.S. courts are requiring of the RIAA. CRIA will be required to bring substantial, relaiable, admissible, non-hearsay evidence showing a bona-fide claim in order to have a court compel such disclosure. The judge has, to my mind, laid out a convenient road-map that CRIA can follow to compel such disclosure in future cases. In light of the private copying exemption contained in section 80(1) of the Copyright Act, whether or not CRIA will have success on the merits in any subsequent infringement case is still unclear. In any event, there is a significant probability that current copyright reform efforts in Canada will result in amendments to the Copyright Act clarifying the situation before any such future case makes it to the courts. In particular, in reseponse to this case, Heritage Canada has stated that the Government of Canada intends to enact changes to the Copyright Act to confer exclusive "making available" rights to copyright holders intended to explicitly make such unauthorized P2P sharing of music online illegal.

Earlier Trial Level Post:

• Canadian Federal Court Rejects CRIA Motion to Disclose IP Addresses of P2P Users (March 31, 2004)

Related Stories: Internet and E-Commerce Law in Canada | e-Copyright Bulletin | Heritage Canada | CRIA Press Release

Related Posts:

• RIAA Wants U.S. ISPs to Offer Discounted Settlements to Alleged P2P Users (February 14, 2007)
• Lawyer who Fights the RIAA Speaks Out (July 21, 2006)
• Dutch Court Rules ISPs Need Not Disclose File Swapper IDs (July 17, 2006)
• British ISP, Tiscali, Refuses BPI Request to Disconnect 17 Users (July 12, 2006)
• RIAA to Students: 'Drop out of College to Pay Settlement'
• Gonzales Calls for 'Reasonable' Data Retention (April 21, 2006)
• Warner/RIAA vs. The John Does Trial to Start May 19 (April 20, 2006)
• One Man's First Hand Account of Being Put Through Hell by the RIAA (April 14, 2006)
• How the RIAA Litigation Process Works (April 5, 2006)
• Canadian Federal Court of Appeal Reaches a Stalemate as to Whether and How Discovery of P2P Users' Identity can be compelled (May 19, 2005)
• Canadian Federal Court Rejects CRIA Motion to Disclose IP Addresses of P2P Users (March 31, 2004)

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Vendors are rerouting connections through proxy servers and using firewalls and encryption to thwart efforts by the recording industry to sue online music swappers.
Source: Information Week

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There’s a budding cottage industry devoted to thwarting file-sharing and other Internet piracy.

Sources: Information Week

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