Archive for the ‘RIAA’ Category
Straight from Gizmodo: “While many judges around the country are throwing out file sharing lawsuits on account of questionable or faulty arguments, DC federal judge Beryl Howell just recently allowed three cases filed by copyright holders to proceed. What makes it intriguing is that she used to be a former RIAA lobbyist.
Sites like TorrentFreak are calling foul, saying that the lawsuits are just ploys for quick settlements and that Howell is allowing a acts of extortion to take place.
In layman’s terms her ruling means that copyright holders can easily request the personal details of people who have allegedly downloaded copyrighted works on BitTorrent. With this decision in hand the copyright holders have all they need. After all, the intention of these lawsuits was never to take the defendants to court, but to send them settlement letters to resolve the issue for a few thousand dollars.
Extortion seems a bit strong, but it’s definitely odd to have a former industry lobbyist hearing cases and promising objectivity. [TorrentFreak via Ars Technica]“
Straight from Ars Technica: “Yesterday’s White House wish list of new intellectual property laws focused on things like counterfeit medicines, but it also included proposals to extend wiretaps into copyright cases and to ensure that illegal streaming video is a felony. A DC trade group representing companies like AMD, Facebook, Oracle, Yahoo, Google, and Microsoft today objected loudly to the plan, saying that legitimate concerns about counterfeiting have been “hijacked to create draconian proposals to alleviate the content industry of the burden of protecting its own interest using its own extensive resources.”
And that was just the beginning. Computer & Communications Industry Association chief Ed Black tapped his inner prophet to roll out a barnburner of a response to the White House. Over the top? Decide for yourself:
Some in Congress and the White House have apparently decided that no price is too high to pay to kowtow to Big Content’s every desire, including curtailing civil liberties by expanding wiretapping of electronic communications. Even the controversial USA PATRIOT Act exists because of extraordinary national security circumstances involving an attack on our country. Does Hollywood deserve its own PATRIOT Act?
This new punitive IP agenda follows just weeks after dictators spying on citizens online was the lead story in every major newspaper. Perhaps the obvious hypocrisy caused someone to decide to wait to announce the US goal of expanding our government’s powers to spy online. A screenwriter could almost market this plot as a comedy—if it weren’t so serious.
Maybe we should be grateful our government only wants to make streaming a song or movie a felony with potential prison time as punishment. What’s next, corporal punishment?
This is the latest indication of the extent to which the content industry has infiltrated this administration and managed to turn the Administration’s IP agenda into a policy which protects old business models at the expense of consumers, citizens’ rights, and our most innovative job creating industries.
That sound you hear is Obama “IP czar” Victoria Espinel scratching Black’s name off her Christmas card list.”
Straight from Fox News: “Record labels are clamoring for a chance to have their artist lip-synch alongside 16-year-old YouTube sensation Keenan Cahill in, of all places, his bedroom.
But could a proposed amendment to the federal copyright infringement law potentially land Cahill, or any person lip-synching copyrighted material in a YouTube video, behind bars?
Senate Bill 978, a bipartisan measure introduced last month by Sen. Amy Klobuchar (D-Minn.), Sen. John Cornyn (R-Texas) and Sen. Christopher Coons (D-Del.), is backed by supporters who say it closes glaring loopholes in current copyright infringement law created by the realities of the digital age.
“As technology rapidly evolves, our laws must be updated to protect creativity and innovation,” said a statement by Cornyn.
But critics say a section of the bill provides for steep penalties — up to five years in prison — for “publicly performing” copyrighted material and embedding the video to sites like YouTube.
“It seems like (the bill) is attacking the core of the Internet itself, which is to promote communication amongst people all over the world,” said Hemanshu “Hemu” Nigam, a former White House counsel for online protection and the founder of the online safety advisory firm SSP Blue.
Cahill’s manager, David Graham, said record labels have contacted the teen in an effort to use the material in his YouTube videos. But what about the average person who lip-synchs and plays a copyrighted song in the background of their YouTube video who doesn’t receive permission from a record label?
Nigam said something as simple as a school recital could expose students and anyone else who participated in the potential copyright violation to prosecution.
“The questions you’re going to have to ask are do you prosecute the school for hosting the event? The parent for videotaping it and posting it on their Facebook? Or the child for actually using the Lady Gaga song and performing it in front of all her loved ones?”
But the bill’s supporters say that’s not going to happen.”
Straight from Ars Technica: “Two months ago, US Intellectual Property Enforcement Coordinator Victoria Espinel produced her wishlist of changes to US law. One item in particular caught our interest—the suggestion that the online streaming of copyrighted content be bumped up to a full-scale felony. Late last week, Senators Amy Klobuchar (D-MN) and John Cornyn (R-TX) introduced just such a bill.
The text of S. 978 isn’t yet available from the official THOMAS system, but Klobuchar’s office sent us a copy of the brief bill. Under current law, “reproducing” and “distributing” copyrighted works are felony charges and cover P2P transfers and Web downloads. But streaming is a “public performance” rather than a “distribution”—and holding a public performance without a proper license is not a felony. S. 978 adds “public performance” to the felony list.
Online streamers can now face up to five years in prison and a fine in cases where:
- They show 10 or more “public performances” by electronic means in any 180-day period and
- The total retail value of those performances tops $2,500 or the cost of licensing such performances is greater than $5,000
Movie makers and theater owners support the bill.
Michael O’Leary, who heads up the MPAA’s government affairs (read: lobbying) work, said in a statement that “criminals are stealing, trafficking, and profiting off the investment that our workers devote to creating the quality films and TV shows that entertain a worldwide audience and bolster the American economy… We thank Senators Klobuchar and Cornyn for introducing this important legislation to standardize the legal treatment of online content theft and helping ensure that federal law keeps pace with the changing face of criminal activity.”"
Straight from Ars Technica: “A major new report from a consortium of academic researchers concludes that media piracy can’t be stopped through “three strikes” Internet disconnections, Web censorship, more police powers, higher statutory damages, or tougher criminal penalties. That’s because the piracy of movies, music, video games, and software is “better described as a global pricing problem.” And the only way to solve it is by changing the price.
Over the last three years, 35 researchers contributed to the Media Piracy Project, released last week by the Social Science Research Council. Their mission was to examine media piracy in emerging economies, which account for most of the world’s population, and to find out just how and why piracy operates in places like Russia, Mexico, and India.
Their conclusion is not that citizens of such piratical societies are somehow morally deficient or opposed to paying for content. Instead, they write that “high prices for media goods, low incomes, and cheap digital technologies are the main ingredients of global media piracy. If piracy is ubiquitous in most parts of the world, it is because these conditions are ubiquitous.”
When legitimate CDs, DVDs, and computer software are five to ten times higher (relative to local incomes) than they are in the US and Europe, simply ratcheting up copyright enforcement won’t do enough to fix the problem. In the view of the report’s authors, the only real solution is the creation of local companies that “actively compete on price and services for local customers” as they sell movies, music, and more.
Some markets have local firms that compete on price to offer legitimate content (think the US, which has companies like Hulu, Netflix, Apple, and Microsoft that compete to offer legal video content). But the authors conclude that, in most of the world, legitimate copyrighted goods are only distributed by huge multinational corporations whose dominant goals are not to service a large part of local markets but to “protect the pricing structure in the high-income countries that generate most of their profits.”
This might increase profits globally, but it has led to disaster in many developing economies, where piracy may run north of 90 percent. Given access to cheap digital tools, but charged terrific amounts of money for legitimate versions of content, users choose piracy.
In Russia, for instance, researchers noted that legal versions of the film The Dark Knight went for $15. That price, akin to what a US buyer would pay, might sound reasonable until you realize that Russians make less money in a year than US workers. As a percentage of their wages, that $15 price is actually equivalent to a US consumer dropping $75 on the film. Pirate versions can be had for one-third the price.
Simple crackdowns on pirate behavior won’t work in the absence of pricing and other reforms, say the report’s authors (who also note that even “developed” economies routinely pirate TV shows and movies that are not made legally available to them for days, weeks, or months after they originally appear elsewhere).
Indeed, the authors have seen “little evidence—and indeed few claims—that enforcement efforts to date have had any effect whatsoever on the overall supply of pirated goods. Our work suggests, rather, that piracy has grown dramatically by most measures in the past decade.”
The “strong moralization of the debate” makes it difficult to discuss issues beyond enforcement, however, and the authors slam the content companies for lacking any credible “endgame” to their constant requests for more civil and police powers in the War on Piracy.
Joe Karaganis, who writes the report’s opening chapter, “Rethinking Piracy,” concludes his section with an endorsement of the idea that piracy is a “signal of unmet consumer demand.” Many content companies and trade organizations have started to embrace this view, but turning a ship this large takes years.
In the meantime, says Karaganis:
Our studies raise concerns that it may be a long time before such accommodations to reality reach the international policy arena. Hardline enforcement positions may be futile at stemming the tide of piracy, but the United States bears few of the costs of such efforts, and US companies reap most of the modest benefits. This is a recipe for continued US pressure on developing countries, very possibly long after media business models in the United States and other high-income countries have changed.
Footnote: The study itself uses an interesting “Consumer’s Dilemma” license, which charges $8 for the report to residents of high-income countries and offers it free for noncommercial use to everyone else (including Canada, which is not “high income.” Who knew?)”
Straight from Cnet: “Jammie Thomas-Rasset, the Minnesota woman who has been fighting the recording industry over 24 songs she illegally downloaded and shared online four years ago, has lost another round in court.
A jury in Minneapolis decided today that she was liable for $1.5 million in copyright infringement damages to Capitol Records, or $62,500 for each song she illegally shared in April 2006.
The Recording Industry Association of America–the trade group that represents the four major music labels–applauded the verdict.
“We are again thankful to the jury for its service in this matter and that they recognized the severity of the defendant’s misconduct,” the RIAA said in a statement. “Now with three jury decisions behind us along with a clear affirmation of Ms. Thomas-Rasset’s willful liability, it is our hope that she finally accepts responsibility for her actions.”
Thomas-Rasset is expected to appeal today’s judgment before Michael Davis, the chief judge for the U.S. District Court for the District of Minnesota, who had previously slashed the damage award in an earlier judgment against Thomas-Rasset.
“We intend to raise our constitutional challenge again before Judge Davis,” Kiwi Camara, an attorney representing Thomas-Rasset, said in a statement to CNET. “The fight continues.”
The trial is the third for Thomas-Rasset, who was originally accused of sharing 1,700 songs–enough to fill about 150 CDs. After one jury found her liable for copyright infringement in 2007 and ordered her to pay $222,000, the judge in the case later ruled that he erred in instructing the jury and called for a retrial. In the second trial, which took place in 2009, a jury found Thomas-Rasset liable for $1.92 million.
Thomas-Rasset subsequently asked the federal court for a new trial or a reduction in the amount of damages in July 2009.
But earlier this year, the judge found that amount to be “monstrous and shocking” and reduced the amount to $54,000. Following that, the RIAA informed Thomas-Rasset that it would accept $25,000–less than half of the court-reduced award–if she agreed to ask the judge to “vacate” his decision, which means removing his decision from the record. Thomas-Rasset rejected that offer almost immediately.”
Straight from Ars Technica: “Between $50 million and $6 billion may be owed to musicians and artists in Canada, but not from your run-of-the-mill file sharers. The Canadian recording industry itself is being accused of massive copyright infringement, and the list of miffed artists just keeps getting longer.
Given how aggressively the recording industry likes to pursue file sharers, one would assume that the industry itself is in the clear when it comes to copyright infringement. But that assumption has been put to the test in Canada, where a massive infringement lawsuit is brewing against some major players. Members of the Canadian Recording Industry Association, including the Big Four (Warner Music Canada, Sony BMG Music Canada, EMI Music Canada, and Universal Music Canada), face the prospect of damages ranging from $50 million up to $6 billion due to their use of artists’ music without permission. That’s right: $6 billion.
The lawsuit in question goes back to October 2008, but continues to be dragged up in the news because new plaintiffs keep joining the case. Most recently, jazz musician Chet Baker’s estate has joined the growing list of musicians and artists who are getting on the music industry’s case for their abuse of a certain aspect of Canadian copyright practices—something that the labels themselves don’t even deny doing.
As University of Ottawa law professor Michael Geist pointed out on his blog, the issue stems from a change to the law in the 1980s that eventually produced something known as the “pending list.” Essentially, record companies no longer had to get a compulsory license every time they wanted to use a song for, say, a compilation album. Instead, they went ahead and used the song without waiting for authorization or making payment, adding the song to a list of music that is pending authorization and payment. If you’re questioning whether you read that right, that basically means the record industries could use songs as long as they pinky swore they would get authorization and pay the artist for it eventually.
As you can imagine, the business didn’t quite work that way. Instead of keeping up with its tab on the pending list, the recording industry just kept adding songs—without obtaining any rights. The pending list among the lawsuit’s defendants has topped 300,000 songs from both large and small artists alike—300,000 songs that the labels are openly admitting that they have not secured the rights for. In the complaint, the plaintiffs claim that the record companies have been unjustly enriched by the use of their unauthorized music (they have, after all, been selling the music without permission and not paying out).
The plaintiffs also show that they are painfully aware of the hypocritical stance the industry has taken in regard to copyright abuse. One part of the complaint says the companies have shown “reckless, high-handed and arrogant conduct aggravated by their clandestine disregard for the copyright interests of the class members in contrast to their strict compliance enforcement policy and unremitting approach to consumers in the protection of their corporate copyright interests.” Ouch.
The recording companies targeted in the suit acknowledge that the pending list reflects unpaid royalties “in excess of $50 million,” but the real extent of the damage could go far higher—possibly to the tune of $6 billion. This is because the class is asking for both statutory and punitive damages for the labels’ behavior (as Geist points out, the same standards being used to go after individual file sharers), meaning that the labels could be asked to pay up to $20,000 per infringement.”
Straight from Torrent Freak: “Earlier this week TorrentFreak reported that there had been objections over one of the proposed lay judges set for the Pirate Bay appeal. Now there are yet more claims of possible bias, this time with two of the main judges who have both been members of pro-copyright groups.
On April 17th all four defendants in the Pirate Bay trial were found guilty and sentenced to one year in prison and a fine of $905,000. Despite this verdict The Pirate Bay continued to operate while the defense filed for an appeal.
A few weeks ago the Court announced that it has two weeks set aside for the Pirate Bay appeal, starting in November. The appeal will be handled by three judges, and according to defense lawyer Per E Samuelsson, two of them could be susceptible to bias.
“It is profoundly inappropriate that even in the court of appeal we have judges who are or have been members of organizations closely related to the copyright industry,” Samuelson wrote, objecting to the appointment of two of the three judges.
The appeal will be handled by judge Ulrika Ihrfelt who was previously removed from the bias investigation of Pirate Bay judge Tomas Norström, because she was linked to pro-copyright groups herself. Now she is facing the same allegations together with judge Christina Boutz.
Ihrfelt has been a member of the Swedish Copyright Association (SFU) and Boutz is a member of the Swedish Association for the Protection of Industrial Property (SFIR).
It is doubtful whether the objection will have an effect. After the initial trial Pirate Bay judge Tomas Norström’s objectivity was called into doubt by the defense lawyers because of his ties to national and international pro-copyright lobby groups, but the Appeal Court later ruled that this had not influenced the verdict.
Earlier this week we reported that one of the planned lay judges in the appeal could also be disqualified from participation, since he is an employee of Swedish music outfit Spotify – a company partly owned by the plaintiffs. However, there could be more to this lay judge issue than initially meets the eye.
TorrentFreak has been informed that the man in question is a bright programmer who co-owns a streaming technology patent along with the original developer of uTorrent, so there can be little doubt that he is somewhat of a BitTorrent expert. So far the defendants haven’t objected to him but there is speculation in Sweden that IFPI could be more afraid of this lay judge than their opposition is, partly since his background is at a technical university where support for Pirate Party values is strong.”
Straight from Torrent Freak: “After The Pirate Bay Four were found guilty earlier this year they appealed, and the date for the new trial was set for November. Now it seems that one of the planned lay judges could be disqualified from participation, since he is an employee of Swedish music outfit Spotify – a company partly owned by the plaintiffs.
Following the revelations that judge Tomas Norström from the original trial had connections with pro-copyright lobby groups, there had been hopes that the trial of the Pirate Bay Four could go to a retrial.
However, that eventuality was denied after the Appeal Court investigated the bias issue and ruled that the judge’s ties to these groups did not influence his judgment.
Instead of a retrial an appeal has been granted which will take place in November. The case will be handled by judge Ulrika Ihrfelt who was previously removed from the bias investigation of judge Tomas Norström, because she too was linked to pro-copyright groups.
Today there is yet another question mark hanging over the head of another judge scheduled to play a major part in the appeal.
Launched as an answer to the file-sharing problem and the possible savior of the music industry, Sweden’s Spotify music service has been widely well received by both the industry and hardened pirates. But there is a problem.
According to an SR.se report today, one of the lay judges in the case has been revealed as an employee of the fledgling streaming music service.
“If the man is not judged to be biased he will be part of the court’s team at the right time,” said judge Ulrika Ihrfelt.
“I would not say there is a problem, but we definitely consider it a factor to which we must draw the attention of the parties, given that Spotify is a company that provides online music,” Ihrfelt added.
But of course, the problem goes just a little bit further than Spotify simply being a provider of online music. It also counts the major music labels – the absolute arch-enemies of The Pirate Bay – as shareholders.
Both the plaintiffs and defendants in the appeal have been notified of the lay judge’s affiliation with Spotify and it will now be down to the court of appeal to decide if there is a conflict of interest.”
Straight from Slashdot: “Daily Tech brings us a story about Sony’s run-in with the Mexican police. (Billboard picked up the story as well.) It seems that they raided Sony’s offices and seized 6,397 music CDs after a protest from the artist, Alejandro Fernandez. Fernandez had signed a seven-album deal with Sony Music; he completed that commitment and then left for Universal. During the time with Sony, he recorded other songs that did not make it into the agreed-upon seven albums. Sony Music took it upon themselves to collect that material and release it as an eighth album. Fernandez claims that he fulfilled his contract with Sony, and residual material belongs to him. Hmm. Precedent from the Jammie Thomas infringement and distribution case gives us $80K per song. Sony vs. Joel Tenenbaum gives $22.5K per song. So 6,397 CDs at an average of 8 songs/CD is 51,176 infringing songs, with (IMHO) intent to distribute. The damages to Fernandez should be $1,151,460,000 using the Tenenbaum precedent or $4,094,080,000 using the Thomas precedent. Seems very straightforward to me.”
Straight from Electronista: “RIAA member Universal Music Group this past weekend was forced to settle a music file sharing lawsuit it had filed against New Hampshire resident Mavis Roy. The label dropped its case after evidence provided by anti-piracy snooping firm MediaSentry was successfully challenged by the defense’s expert witness Dr. Sergey Bratus. Among other key problems with the data, the defense pointed out that Roy didn’t own a computer at all at the time of the supposed infringement and that it wasn’t until a letter appeared that she was aware of any possible action.
Universal is likely to have settled the case to avoid creating a legal precedent that could be used to shoot down other MediaSentry-derived evidence and defeat the RIAA in similar cases.
Opponents to the RIAA’s lawsuit tactics have argued that MediaSentry is not only an unauthorized investigator but that it has regularly misidentified file traders by making assumptions about the accuracy of IP addresses that have targeted the deceased, young children and those like Roy who didn’t have computers. Such tracking systems can only see file sharing accounts used by certain IP addresses and doesn’t account for those using others’ connections, mistaken physical addresses or the person actually using the computer.
The RIAA has claimed it will stop suing individuals in favor of trying to force Internet providers to monitor and flag pirated material, but questions have been raised why new lawsuits have appeared and why other, sometimes questionable lawsuits have persisted since the formal change in policy.”
Straight from Torrent Freak: “To determine if the verdict in the Pirate Bay case was biased, the connections of Judge Tomas Norström to national and international pro-copyright lobby groups will be reviewed by another judge. However, the judge that was initially appointed has already been replaced because she was linked to the same organizations as Norström, and her replacement is not exactly unbiased either.
Pirate Bay judge Tomas Norström’s objectivity has been called into doubt because of his ties to national and international pro-copyright lobby groups. Furthermore, one of the defense lawyers claimed to have evidence that Norström was handpicked and not assigned to the case randomly.
To investigate these accusations of bias, the appeal court appointed a judge, Ulrika Ihrfelt. Her task is to decide whether or not Norström’s verdict could have been biased since this issue must be resolved before they will look into the appeal request. If it’s determined that Norström was indeed biased, the case will be resubmitted to the district court for retrial, meaning that an appeal is not needed at this stage.
However, soon after the appointment of Ulrika Ihrfelt, it became known that she too had been a member of the same pro-copyright organizations as the ‘biased’ judge. The appointment was criticized by several judicial analysts who said she wasn’t fit either. Judicial praxis dictates that the court must not only be unbiased, but also be BELIEVED to be unbiased, which is clearly not the case here.
As a consequence and in order to avoid more negative press, the appeal court sent out a press release today in which they announce that Ihrfelt has been taken off the case. She has been replaced by three new judges from a separate division of the court.
In the press release, the appeal court writes: “The reasons for this is that the question of whether the original judge was biased needs to be tried by other judges other than those that later may have been given the case. Furthermore, because of the content of the claim of bias, it has been deemed proper that the question should be answered by a division that is not specialized in copyright.”
“None of the three judges are or have been members of the [pro-copyright] organizations in question,” the appeal court announced. But is this really the case?
With a simple Google search Pirate Bay’s Peter Sunde has already discovered that one of the replacements, Anders Eka, is connected to the The Stockholm Center for Commercial law, together with movie industry lawyers Monique Wasted and Peter Danowsky who represented the music industry in the Pirate Bay trial.
Nevertheless, the appeal court does not intent to replace the new judge(s). “The group Anders Eka is member of has no connection to copyright issues and the interests that are present in the case. I cannot see how this specific connection could lead to that Anders Eka isn’t suitable to try the question of bias,” Fredrik Wersäll, the president of the appeal court said.
The court will not look at the appeal case before the question of Norström’s bias is settled. The bias issue will be given priority and should be settled “in a few weeks at the maximum”, according to the appeal court president.
With all the commotion and judicial incompetence displayed after the Pirate Bay trial it seems almost unthinkable that a retrial won’t be granted. It is therefore no surprise that the entertainment industries try to get some cash off the defendants before it’s too late.”
Straight from TorrentFreak: “It’s been almost a week since the verdicts of one year in prison and heavy financial damages were passed against the four accused in the Pirate Bay trial. The sentence seemed surprisingly tough to many analysts, with the court chosing to judge on intent only, dismissing all technical evidence.
But did The Pirate Bay Four receive a fair trial? Today, an event on Swedish national radio SR threw everything into doubt – and it’s barely believable, like something straight out of Hollywood.
The copyright industry likes to have the outcome of processes clear before engaging them so it’s perhaps unsurprising that SR today revealed that the judge Tomas Norström is in league with it on many fronts. The judge has several engagements – together with the prosecution lawyers for the movie and music industries.
Swedish Association of Copyright (SFU) – The judge Tomas Norström is a member of this discussion forum that holds seminars, debates and releases the Nordic Intellectual Property Law Review. Other members of this outfit? Henrik Pontén (Swedish Anti-Piracy Bureau), Monique Wadsted (movie industry lawyer) and Peter Danowsky (IFPI) – the latter is also a member of the board of the association.
Swedish Association for the Protection of Intellectual Property (SFIR) – The judge Tomas Norström sits on the board of this association that works for stronger copyright laws. Last year they held the Nordic Championships in Intellectual Property Rights Process Strategies.
.SE (The Internet Infrastructure Foundation) – Tomas Norström works for the foundation that oversees the .se name domain and advises on domain name disputes. His colleague at the foundation? Monique Wadsted. Wadsted says she’s never met Norström although they have worked together.
Commenting on the revelations, Pirate Bay spokesman Peter Sunde brokep said, “Spectrial Cliffhanger in S01 with the verdict – S02 started with the judge being biased. Reality beats fiction yet again!”
There are several renowned lawyers and judicial commentators that are attacking Tomas Norström’s decision to take the case, in spite of having a clear conflict of interest.
“I wouldn’t have taken the case,” says former judicial ombudsman Rune Lavin.
Former Director of Public Prosecution Sven-Erik Alhem said, “You cannot hide controversial facts. The attention this gets only leads to unnecessary questioning of bias in Swedish courts. Of course the judge should have informed people of the situation prior to the process and thereby allowed the involved parties to decide if it was suitable or not.”
Lawyer Leif Silbersky made a comment all Pirate Bay supporters want to hear, “If the lawyers [for the defense] act on this immediately, this could mean a re-trial.”
Peter Sunde’s lawyer Peter Althin says he has already put in a request for a re-trial. “In my appeal, I will claim the court was biased and that the appeal court should cancel the verdict and re-submit the case to the district court,” he said.
And the judge himself? “Every time I accept a case I make an assessment on whether I am part of it or not. But I have not felt that I am biased because of those commitments,” he said.
During the trial it was the judge, Tomas Norström, that was responsible for ensuring that the trial was fair and that the lay judges did not act in their own interests.
Previously one of the original lay judges in the case had to step down when his involvement in a music rights group became known;
“Three lay judges were appointed,” said Judge Norström one week before the trial. “On a question from me to the lay judges on whether they had any involvement in copyright associations or similar, or if they are or have been artists one of them answered Yes.”
That lay judge was removed. It’s anyone’s guess why the judge didn’t think the same should apply to him.
Whether or not Tomas Norström allowed his personal interests to get in the way of a fair verdict is open for debate, but there can’t be an intelligent human being reading this news that doesn’t feel that it would’ve been better for everyone if he simply backed away from this case and let someone else take over. He has compromised the entire case and verdict.
Rick Falkvinge of Sweden’s Pirate Party said the revelations were indicative of “corruption on a completely unforgivable level.””
Straight from Slashdot: “The Recording Industry of America’s favorite courtroom lawyer, Tom Perrelli, who has sued individual file swappers in multiple federal courts, is President-elect Barack Obama’s choice for the third in line at the Justice Department. CNet’s Declan McCullagh explores the background of the man who won the RIAA’s lucrative business for his DC law firm: “An article on his law firm’s Web site says that Perrelli represented SoundExchange before the Copyright Royalty Board — and obtained a 250 percent increase in the royalty rate for music played over the Internet by companies like AOL and Yahoo,” not to mention Pandora and Radio Paradise.”
Straight from Wired: “A federal judge on Wednesday set aside the nation’s first and only federal jury verdict against a peer-to-peer file sharer for distributing copyrighted music on a peer-to-peer network without the labels’ authorization.
U.S. District Judge Michael Davis of Duluth, Minnesota, declared a mistrial in the case of Jammie Thomas, a Minnesota mother of three, setting aside the $222,000 penalty levied by a federal jury last year for copyright infringement — $9,250 for each of the 24 infringing music tracks she made publicly available on the Kazaa file sharing network.
Davis’ decision means the Recording Industry Association of America’s five-year copyright infringement litigation campaign has never been successful at trial.
Thomas was the nation’s only RIAA target to take her case to trial, which last year ended in an RIAA victory. The case emboldened the recording industry’s resolve to continue its public relations effort against file sharing through a nationwide litigation campaign.
The legal brouhaha prompting Davis to declare a mistrial focused at the heart of all file sharing cases: What level of proof was necessary for the RIAA to prevail.
Davis had instructed (.pdf) the jury last year that the recording industry did not have to prove anybody downloaded the songs from Thomas’ open Kazaa share folder. Davis read Jury Instruction No. 15 to jurors saying they could find unauthorized distribution — copyright infringement — if Thomas was “making copyrighted sound recordings available” over a peer-to-peer network “regardless of whether actual distribution has been shown.”
But Davis had second thoughts and, without any urging from the litigants in the case, summoned the parties back to his courtroom in August, writing in a brief order that he may have committed a “manifest error of the law.” He heard arguments from both sides and said he would issue a ruling soon.
With Wednesday’s opinion, Davis made his revised position official and ordered a retrial — one with different jury instructions.
“Jury Instruction No. 15 was erroneous, and that error substantially prejudiced Thomas’ rights. Based on the court’s error in instructing the jury, it grants Thomas a new trial,” the judge ruled (.pdf).
The RIAA, which is the music industry’s lobbying and litigation arm, fought hard to keep Jury Instruction No. 15 in play. The group told the judge that copyright infringement on peer-to-peer networks is implied, and that it shouldn’t have to provide proof of an actual transfer — because it’s impossible.
“Requiring proof of actual transfers would cripple efforts to enforce copyright owners’ rights online – and would solely benefit those who seek to freeload off plaintiff’s investment,” RIAA attorney Timothy Reynolds said in a court filing (.pdf).
It was the third time a federal judge had ruled against the RIAA on the making-available claim. The decisions in the other two cases were in a pretrial stages, one case of which was dismissed in the RIAA’s favor because a judge concluded the defendant had tampered with evidence and ordered him to pay $40,000.”
Straight from Ars Technica: “How much does sharing “Waiting For A Girl Like You,” “Money For Nothing,” and “Sweet Child O’ Mine” on P2P networks cost defendants if they end up in court? Arizona resident Jeffrey Howell has just found out the hard way. While Jammie Thomas came in for more than $200,000 of statutory damages in her Minnesota trial last year, Howell escaped with a (mere) $40,850 fine. Perhaps he should be grateful, though we doubt that’s the emotion he’s feeling today.
Few of the RIAA’s thousands of cases against individual file-swappers ever make it to trial; fewer still reach a judgment, making these awards quite unusual. Howell, who served as his own counsel throughout the trial, did himself no favors by intentionally destroying evidence of his computer activity after being ordered by a judge to preserve it. According to the RIAA, Howell uninstalled KaZaA and deleted everything in the shared folder, reformatted his hard drive, downloaded and used a file-wiping program, and then nuked all the KaZaA logs on his PC. Anyone who has seen even a single episode of Perry Mason knows that this is a huge no-no.
Ruling last week that Howell had acted in bad faith, the judge was forced to call the case to a premature close and issue judgment against Howell. Howell’s punishment was to come at a later date, and the judge has now issued his ruling.
Howell is ordered to pay $350 in court costs—an incredible bargain when set against a whopping $40,500 in statutory damages. In addition, he will pay 2.12 percent interest on the unpaid balance until the entire amount is paid off; in essence, Howell has just taken out a pricey new car loan, except that instead of a car, he gets a big pile of nothing to park in his driveway.
The judge also ordered him to stop infringing copyrights, “including without limitation by using the Internet or any online media distribution system to reproduce (i.e., download) any of Plaintiffs’ Recordings, or to distribute (i.e., upload) any of Plaintiffs’ Recordings.”
And, just for good measure, Howell is instructed to “destroy all copies of those downloaded recordings transferred onto any physical medium or device in Defendant’s possession, custody, or control.”
Given that Howell didn’t have the cash even to pay a lawyer, the RIAA may never see all of this money. Not that it matters; the PR value of winning these sorts of cases is no doubt reward enough.
The RIAA takeaway from the case will surely be a lesson about how the group will hunt down and then win cases against file-swappers. The lesson that EFF staff attorney Fred von Lohmann takes from the case, though, is a different one: get yourself a lawyer.
“He never had an adequate opportunity to explain what happened on his PC, while the RIAA had forensics experts and lawyers to tell the story,” von Lohmann told us last week. “I think if Howell had an expert and lawyer to speak for him, he would have told a different story.”"
Straight from TorrentFreak: “If you read a mainstream media news report about file sharing or talk to a reporter about (illicit) filesharing, you would think that the only case involving the RIAA was Capitol V Thomas, a case that made news nationwide for the size of the fines. However, there are a number of cases going on around the country, cases where the RIAA did not win.
One of the most under-reported is Atlantic V Anderson, which has taken over 3 years from start to finish. The RIAA eventually dropped it with prejudice, meaning they accept the fault was theirs in this case. A similar thing happened in the case against another alleged filesharer, Foster, but both cases were relatively under-reported in mainstream media.
Copyright law, like most other aspects of civil law, allows for the prevailing party to recoup legal fees and costs incurred in the case. This is exactly what Foster and Anderson did, with success. The Foster case was awarded over $68,000 in attorney fees and costs. Likewise, the Anderson case was awarded fees and costs but of a substantially greater amount; $107,834 to be precise, in an order dated July 28th 2008.
It is encouraging to finally hear that last night, the RIAA and the member companies that were involved in the case finally paid the fees (they refused first), putting an end to this protracted legal wrangling. The amount paid was not, however, $107,834 but a figure of $107,951 – a figure which takes into account interest accrued due to delay.
It should be noted that while this is the end of Atlantic V Anderson, it is not the end of Anderson V Atlantic, the case where Ms Anderson is taking her former accusers to task over their practices in this field. It is a heartening victory, and one that is spurring the tide.
So, with Thomas looking to head to a mistrial, making the $222,000 judgment null and void, the two largest decisions in the RIAA’s ‘war on downloading’ have been against them. In both cases the RIAA admitted it was wrong, and ordered to pay the fees.”
Straight from Ars Technica: “Stephanie Lenz’s YouTube video of her tot dancing to an old Prince song was pulled down at the request of Universal last year after the music label said that the clip infringed on its copyright. Not content with simply having Universal retract its claim, Lenz and the Electronic Frontier Foundation are out to put the squeeze on Universal for issuing a bad-faith DMCA takedown. But Universal told a judge this week that, even though the clip may in fact be “fair use,” it was still “infringement” and therefore the initial takedown notice was made in good faith.”
Straight from Slashdot: “For the past 2 years, the RIAA and its attack dog SafeNet (formerly known as MediaSentry) have been trying to avoid disclosure in UMG v. Lindor by telling the judge that MediaSentry is NOT an expert, that it does not use any technical expertise to get the ‘evidence’, and that it does only ‘what any other Kazaa user does’. We have just discovered that in administrative proceedings in Michigan, attacking it for engaging in the business of investigation without a license, MediaSentry has taken the exact opposite position, comparing itself to chemical engineers, surveyors, physicians, geologists, and other expert witnesses who rely on their technical expertise. Today we went public with some of the contradictions. Now let’s hope Michigan’s Department of Labor and Economic Growth finds out about it.”
Straight from Ars Technica: “Exonerated P2P defendant Tanya Andersen should be awarded $107,834 in court costs and attorney fees, a federal magistrate judge ruled yesterday. It’s the largest attorneys’ fees award to date against the RIAA, but a far cry from both the $298,995 sought by her attorney and the RIAA’s reckoning of just under $30,000. Of course, all the RIAA needs is for 27 college kids to settle at $4,000 a pop and it’s got the award covered.
The RIAA dropped its case against Andersen in June 2007 after over two years of litigation. Not long after, the judge ruled that, as the prevailing party, Andersen was entitled to attorneys’ fees. Just how high that award should be quickly became a point of contention. Andersen’s attorney Lory Lybeck argued that he was entitled to a multiplier of double the fee amount because of his “high-risk, successful” defense.
The RIAA argued that the nearly $300,000 sought by Andersen was “excessive” in numerous respects. The case was merely a “straightforward copyright infringement claim,” argued the labels in a brief filed in March.”