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Submission + - Veoh once again beats UMG (after going out of business) (

NewYorkCountryLawyer writes: "Veoh has once again beaten the record companies; in fact it has beaten them in every round, only to have been forced out of business by the attorneys fees it expended to do so. I guess that's the record companies' strategy to do an 'end around' the clear wording of the DMCA "safe harbor": outspend them until they fold. Back in 2009 the lower court dismissed UMG's case on the ground that Veoh was covered by the DMCA "safe harbor" and had complied with takedown notices. The record companies of course appealed. And they of course lost. Then, after the Viacom v. YouTube decision by the 2nd Circuit, which ruled that there were factual issues as to some of the videos, they moved for rehearing in UMG v. Veoh. Now, in a 61-page decision (PDF), the 9th Circuit has once again ruled that the statute means it says, and rejected each and every argument the record companies made. Sadly, though, it did not award attorneys fees."

Submission + - Troll complaint dismissed; subscriber not necessarily infringer (

NewYorkCountryLawyer writes: "The courts are finally starting to get it, that the subscriber to an internet access account which has been used for a copyright infringement is not necessarily the infringer. In AF Holdings v. Rogers, a case in the Southern District of California, the Chief Judge of the Court has granted a motion to dismiss the complaint for failure to state a claim where the only evidence the plaintiff has against defendant is that defendant appears to have been the subscriber to the internet access account in question. In his 7-page opinion (PDF), Chief Judge Barry Ted Moskowitz noted that "just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity"."

Submission + - Jammie Thomas takes constitutional argument to SCOTUS (

NewYorkCountryLawyer writes: "Jammie Thomas-Rasset, the Native American Minnesotan found by a jury to have downloaded 24 mp3 files of RIAA singles, has filed a petition for certioriari to the United States Supreme Court, arguing that the award of $220,000 in statutory damages is excessive, in violation of the Due Process Clause. Her petition (PDF) argued that the RIAA's litigation campaign was "extortion, not law", and pointed out that "[a]rbitrary statutory damages made the RIAA’s litigation campaign possible; in turn,that campaign has inspired copycats like the so-called Copyright Enforcement Group; the U.S. Copyright Group, which has already sued more than 20,000 individual movie downloaders; and Righthaven, which sued bloggers. This Court should grant certiorari to review this use of the federal courts as a scourge"."

Submission + - 8th Circuit upholds $220,000 verdict in Jammie Thomas case (

NewYorkCountryLawyer writes: "The US Court of Appeals for the 8th Circuit has upheld the initial jury verdict in the case against Jammie Thomas, Capitol Records v. Jammie Thomas-Rasset, ruling that the award of $220,000, or $9250 per song, was not an unconstitutional violation of Due Process. The Court, in its 18-page decision (PDF), declined to reach the "making available" issue, for procedural reasons."

Submission + - New judge assigned to case upholds $675k verdict in Tenenbaum case (

NewYorkCountryLawyer writes: "In SONY v Tenenbaum, the new District Judge assigned to the case has disagreed with the previous judge, and instead of reducing the $22,500 per file award to $2250 per file, has instead upheld the jury's verdict. The jury initially found defendant Joel Tenenbaum to have "willfully" infringed the RIAA copyrights by downloading 30 mp3 files which would normally retail for 99 cents each, and awarded the plaintiff record companies $675,000 in "statutory damages". Tenenbaum moved to set the verdict aside on both common law remittitur grounds and constitutional due process grounds. Judge Gertner — the District Judge at the time — felt that remittitur would be a futility, and on constitutional grounds reduced the verdict to $2250 per file. The RIAA appealed. The 1st Circuit Court of Appeals remanded on the ground that Judge Gertner ought to have decided the question on remittitur grounds and reached the constitutional question prematurely. By the time the case arrived back in District Court, Judge Gertner had retired, and a new judge — Judge Rya Zobel — had been assigned. Judge Zobel denied the remittitur motion. And then Judge Zobel denied the constitutional motion, leaving the larger verdict in place. I think it is reasonable to expect Tenenbaum to appeal this time around."

Submission + - Appeals court upholds sanction against BitTorrent download attorney (

NewYorkCountryLawyer writes: "The United States Court of Appeals for the Fifth Circuit has upheld sanctions awarded by a District Court against one of the lawyers bringing copyright infringement cases against individuals for BitTorrent movie downloads, in Mick Haig Productions v. Does 1-670. The Court's opinion (PDF) described the lawyer's "strategy" as "suing anonymous internet users for allegedly downloading pornography illegally using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars — a tactic that he has employed all across the state and that has been replicated by others across the country"."

Submission + - Court denies injunction against Aero's tv-to-computer service (

NewYorkCountryLawyer writes: "Finding to no avail the television networks' attempt to distinguish Cartoon Networks v. CSC Holdings, the case upholding Cablevision's DVR service, a federal district court judge has denied their motion for a preliminary injunction against Aero's tv-to-computer screen subscription service. After 11 weeks of discovery, followed by a 2-day evidentiary hearing (a mini-trial, if you will), the Court rendered an excruciatingly detailed 52- page analysis of the technology involved (PDF) and of how the technology meshed with "Cartoon Network"."

Submission + - No you can't claim "negligence" in a copyright case (

NewYorkCountryLawyer writes: "In one of the myriad BitTorrent downloading cases against individuals, one plaintiff's law firm thought they'd be clever and insert a "negligence" claim, saying that the defendant was negligent in failing to supervise his roommate's use of his WiFi access. Defendant moved to dismiss the negligence claim on the ground that it was preempted by the Copyright Act, and the Electronic Frontier Foundation filed an amicus curiae brief (PDF) agreeing with him. Judge Lewis A. Kaplan agreed, and dismissed the complaint, holding that the "negligence" claim was preempted by the Copyright Act."

Submission + - Forensic investigator makes claims about BitTorrent detection technology (

NewYorkCountryLawyer writes: "In one of the many BitTorrent download cases brought by pornographic film makers, the plaintiff — faced with a motion to quash brought by a "John Doe" defendant — has filed its opposition papers. Interestingly, these included a declaration by its "forensic investigator" (PDF), employed by a German company, IPP, Limited, in which he makes claims about what his technology detects, and about how BitTorrent works, and attaches, as an exhibit, a "functional description" of his IPTracker software (PDF)."

Submission + - Is being in the same BitTorrent "swarm" equal to "interacting"? ( 1

NewYorkCountryLawyer writes: "In the new wave of bittorrent downloading cases, the plaintiffs' lawyers like to lump a number of "John Does" together in the same case in order to avoid filing fees ($350 a pop). Their excuse for 'joinder' is the allegation that the defendants 'interacted' with each other by reason of the fact that their torrents may have eminated from the same "swarm". In Malibu Media v. Does 1-5, when John Doe #4 indicated his intention to move for severance, the Court asked the lawyers to address the "swarm" issue in their papers. So when John Doe #4 filed his or her motion to quash, sever, and dismiss, he filed a detailed memorandum of law (PDF) analyzing the "swarm" theory in detail. What do you think?"

Submission + - EFF submits amicus brief: no 'negligence' in copyright case (

NewYorkCountryLawyer writes: "In one of the multitudinous bittorrent download cases now clogging the federal court system, Liberty Media Holdings v. Tabora, a plaintiff's lawyer cleverly invented a "negligence" claim, just in case he couldn't prevail on his weak copyright claims, arguing that defendant was 'negligent' in letting his roommate use his wireless internet service. Defendant's lawyers astutely moved to dismiss the negligence claim on the ground that it was preempted by the Copyright Act. The Electronic Frontier Foundation agreed with defendant and, with the Court's consent, filed an amicus curiae brief (PDF) supporting defendant's motion."

Submission + - Ask Slashdot: What will the 8th Circuit do in Jammie Thomas case? (

NewYorkCountryLawyer writes: "The RIAA doesn't really like free mp3 files floating around but here's one you can access legally — the audio file of the June 12, 2012 oral argument of the RIAA's appeal in Capitol Records v. Jammie Thomas-Rasset. At issue in this case are (a) the RIAA's "making available" theory and (b) the constitutionality of large statutory damages awards for download of an mp3 song file. The lower court rejected the making available theory, and reduced the jury's verdict to what the judge considered the maximum possible award of $2250 per file. I'm predicting the Court will affirm. After listening to the oral argument, what do you think?"

Submission + - Judge orders Verizon subscriber identities sealed (

NewYorkCountryLawyer writes: "In one of the mass "John Doe" cases based on single BitTorrent downloads of films, Malibu Media v. Does 1-13, a pro se litigant made a motion to quash the subpoena. The Court granted a stay of the subpoena, pending its decision on the motion to quash. Unfortunately for John Doe, Verizon had turned over its subscribers' identities 5 days BEFORE the response was due, thus possibly mooting both the stay and the motion to quash. Fortunately for John Doe, the Judge wasn't too happy about this, ordered the information sealed, directed plaintiff's lawyers to destroy any copies, and ruled that they can't use the information unless and until the Court denies the motion to quash."

Submission + - Verizon answers John Doe subpoena BEFORE it was due ( 1

NewYorkCountryLawyer writes: "Verizon has just committed serious misconduct, by taking it upon itself to answer a subpoena 5 days before its answer was due. In a bittorrent movie downloading "John Doe" case, Malibu Media v. Does 1-13, in Central Islip, New York, on Long Island, a John Doe defendant had, back in April, moved to quash the subpoena (PDF), which was returnable May 12th. The Court, on May 10th, issued an order staying enforcement of the subpoena, and directing Malibu's lawyers to notify Verizon immediately. Unfortunately, the stay order wasn't worth the paper it was printed on, since, it now turns out, Verizon had turned over the John Does' names on May 7th, a full 5 days prior the date its response was due. Apart from wondering what gave Verizon the right to deprive the Court of its authority to review a subpoena prior to its return date, one might also wonder why it took the plaintiff's lawyers 10 days to notify the Court of Verizon's misconduct."

Submission + - Tenenbaum to SCOTUS: let's get this debate rolling (

NewYorkCountryLawyer writes: "Joel Tenenbaum has filed a reply brief in support of his petition for certiorari to the US Supreme Court, in SONY BMG Music Entertainment v. Tenenbaum, trying to get the Court to take on the thorny issue of copyright statutory damages in the age of mp3 files and micropayments."

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