Ray Beckerman of the Recording Industry v.. The People site has an interesting post up showing all the recent lawsuits filled by the RIAA:

According to a report on Wired.com, the RIAA spokesman claims that the RIAA has not filed any new lawsuits “for months”; according to the Wall Street Journal report the RIAA stopped filing mass lawsuits “early this fall”; and the Associated Press was apparently told that the RIAA had stopped bringing new lawsuits in August.

Being very familiar with the RIAA’s penchant for “misspeaking”, even when under oath, I investigated the matter a bit, and learned that a large number of suits have been brought by the RIAA quite recently, one as recently as this Monday. Here are just a few. Those marked green were contributed by some of our great readers:

Atlantic Recording v. Williams 08cv01710 W.D. Pennsylvania 12/15/08
Sony BMG Music v. Linus 08cv14413 S.D. Florida 12/11/08
UMG Recordings v. Gulledge 08-cv-00973-MHT-TFM M.D. Alabama 12/10/08
Warner Bros. Records Kelley 08-cv-02295-CLS N.D. Alabama 12/10/08
Sony BMG Music v. Van Ornum 08-cv-04205-JLH E.D. Arkansas 12/10/08
Interscope Records v. Tabor 08-cv-03068-JLH W.D. Arkansas 12/10/08
BMG Music v. O’Brien 08-cv-02244-HRH D. Arizona 12/10/08
Priority Records v. Easterling 08-cv-08131-PA-JTL C.D. California 12/10/08
UMG Recordings v. Ibarzabal 08-cv-08136-R-SH C.D. California 12/10/08
Interscope Records v. Doe 4 08-cv-01880-JBA D. Connecticut 12/10/08
Arista Records v. Doe 2 08-cv-01874-CFD D. Connecticut 12/10/08
Arista Records v. Doe 3 08-cv-01876-SRU D. Connecticut 12/10/08
UMG Recordings v. Burmeister 08-cv-02295-MPM-DGB C.D. Illinois 12/10/08

If the RIAA wants credibility they need to have their legal department talk to their media department and stop filling suits yesterday and find an amiable way to solve the outstanding suits in progress.

This is great news from the WSJ :

After years of suing thousands of people for allegedly stealing music via the Internet, the recording industry is set to drop its legal assault as it searches for more effective ways to combat online music piracy.

The decision represents an abrupt shift of strategy for the industry, which has opened legal proceedings against about 35,000 people since 2003. Critics say the legal offensive ultimately did little to stem the tide of illegally downloaded music. And it created a public-relations disaster for the industry, whose lawsuits targeted, among others, several single mothers, a dead person and a 13-year-old girl.

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider’s customers making music available online for others to take.

Now they just need to put start putting resources into find new business models and we can work together.

Opentape philosophy:

Sharing your musical tastes should be fun and easy. We believe there is no reason it has to end with the shutdown of a single site, so we’ve created a free tool to make this possible.

Check Opentape out for yourself:

Links:
Arstechnica – Opentape Invites RIAA to Play Whack a Mole Post Muxtape

Free Culture News -Opentape an Freeopen Muxtape Replacement

The bridgeport-v-combs opinion from the the 6th Circuit, is a very interesting. I view this case as similar to Ebay v. MerchExchange. In Ebay the Supreme Court was harmonizing injunction cases so that the same standards apply to patent cases as to all other cases. In Brigdeport v. Combs the the same thing is being done with statutory damages. This is great news is it helps restore some balance to copyright actions.

Here is the detailed break down:

1. UNIVERSAL RECORDS is a defendant, Universal has been a plaintiff in many file sharing suits
2. The court viewed 5 factors to determine appropriateness of the extremely large statutory damages. These factors are to judge the “the reprehensibility” of the defendants actions :

Factor 1: the harm caused was physical as opposed to economic;
Factor 2: the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others;
Factor 3: the target of the conduct had financial vulnerability;
Factor 4:the conduct involved repeated actions or was an isolated incident;
Factor 5:the harm was the result of intentional malice, trickery, or deceit, or mere accident.
These factors were taken from State Farm, 538 U.S. at 419

3. The factors should not weigh in favor of large statutory damages in noncommercial sharing case. This means that Universal has come up with a legal stratagem to defeat most of it own threats.

Let’s take a closer look at these factors more closely:

Factor 1: the harm caused was physical as opposed to economic;

Brian’s Comments: This factor will NEVER weigh against a non-commercial sharing. Sharing does not cause physical harm.

Factor 2: the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others;

Brian’s Comments: Sharing does not cause health of safety problems ever. That is two strikes.

Factor 3: the target of the conduct had financial vulnerability;

Brian’s Comments: this is another factor that weighs in favor the the defendants. In RIAA suits it is the huge multi million dollar cooperations going after the small individuals often with little to no legal council. That is three strikes against large statutory damages.

Factor 4: the conduct involved repeated actions or was an isolated incident;

Brian’s Comments: This is the only factor that could go strongly against the defendant, since large scale sharing is very easy. Although most of the case brought so far have no real evidence of actual sharing, to speak nothing of repeated offenses of similar conduct. The score is 3-1 in favor of the defendants.

Factor 5:the harm was the result of intentional malice, trickery, or deceit, or mere accident.

Brian’s Comments: The last factor is a wash, but could go either way dependent on the court although I think it should go in favor of the defendant. For many people sharing is a generational norm and should be legalized. I am of the Napster generation and did not view non commercial sharing as malice, trickery of deceit. Everyone in my gen shared. It was part of a culture that was empowered by tech, we support artist through patronage. No one I know shared from malice.

The outcome of using these factors should be 4 to 1 or 5 to 0 in favor of the non commercial sharing. When only one factor is present, statutory damages should only be enforced at a ratio of 1:1 or 2:1. These ratios may take some of the wind out of the fear tactics the RIAA is using to intimidate pro se litigants.

I strongly recommend reading this case. The main question this leaves unanswered is how do we apply statutory damages when there is no proven harm and no compensatory damages? Does this make all the ratios a 100000:1 and excessive or is there a legal doctrine to support statutory damages as a replacement for harm based compensation. If so are the courts doing anything more then engaging an unjust enrichments by taking money from one who neither profited nor caused harm.

PS if anyone has copies of the briefs to the 6th Circuit I would love to see them. Email me at [email protected]

Full text of this issue after the jump:
(more…)

I was curious about Childnet’s Young People Music and the Internet guide and decided to email [email protected] to get my own physical copy of the guide. I was very surprised to receive a return email from an RIAA employee! Not once in the guide is the RIAA mentioned, only a partner organization pro-Music.org

This guide for parents and teachers has been written by children’s charity Childnet International, with support from Pro-Music and Netfamily news.org.

The views in this guide are solely those of Childnet. Childnet is a non-profit organisation working to help make the internet a great and safe place for children. Registered as a charity in the UK (number 1080173).

Pro-Music is an international music sector education campaign about digital music. This guide is supported by Pro-Music member organisations representing musicians, performers, artists, major and independent record companies, publishers, managers and retailers across the music industry. To order copies of this leaflet e-mail: [email protected]

Here is the response I received from ProMusic via the RIAA:

No Problem. I will e-mail him.

We actually list it on our homepage:
http://www.riaa.com/toolsforparents.php

Best/

Coordinator, Communications

Recording Industry Association of America

(Personal contact information removed)

After further research it appears that the RIAA’s version of the leaflet has been up for about a year. (Thank you Internet Archive.) I would expect a little more disclosure and attribution from a charity. Childnet simply reworked older propaganda from the RIAA while removing any direct links to the less popular RIAA brand by misleading readers to believe that their support comes from ProMusic.

I hope we can lobby the charity to change the leaflet and come clean over who their partners are. It was a little jarring to request a leaflet from a charity and receive an email response from an organization that is notorious in the US for intimidation tactics, privacy violations and harassment of college students.

Childnet International’s mission is to work in partnership with others around the world to help make the Internet a great and safe place for children. Childnet anounced on April 30th that they are launching a

global information campaign to explain the world of music downloading to teachers and parents worldwide.

This updated pocket-sized guide, supported by Pro-music, the international alliance of music sector groups, will be distributed through schools and colleges, libraries, record stores, teaching portals and websites in 21 countries.

The primary problems with this campaign are twofold:
1. The campaign appears to be little more then a scare campaign cooked up the RIAA. The guide to “Young People, Music and the Internet” ignores users rights like Fair Use and provides no real resources for parents that want to learn about the issues and options. As a parent I am insulted by the single sided perspective that uses fear over facts.

2. The campaign fails to educate young people or parents on real safe online practices. Services that include free legal content like Miro, jamendo.com and Magnatune are ignored while the resource for finding music are nothing more than a list of approved online music stores. This campaign is as close to a pure advertisement as one can get while still pretending to educate.

Here is an example of the scare tactics used to “educate” one on using music at home

“What are the risks of looking for music?”

One of the risks with P2P is that children may come across unwelcome content such as viruses, pornographic or violent images. Some files are purposely misnamed to trick people into downloading them. Because of the way P2P services work, filtering tools that can block offensive content like porn or violent images and video on websites are not effective in blocking the same content when made available through P2P. This leaves children at risk.

Some P2P software lets users “chat” with other file-sharers, most of them strangers, so the same concerns and rules about chatting on the internet should apply here too. See Childnet’s
www.chatdanger.com website.

Brian’s Comments: Pure scare tactics with little to no factual basis. Chatdanger.com is another scare tacit site that is short on facts and long on FEAR.

“Could our private files leak on to the internet?”

P2P software opens “doors” in your computer which may compromise privacy and security. It is possible to inadvertently share private and confidential details including financial information with other file-sharers.

Some P2P programmes come with extra software, called “spyware”. This may report which websites you visit to marketing companies, or even record your passwords and send them to fraudsters.

File-sharers’ computers may be vulnerable to viruses infecting other machines on the P2P networks and to people trying to control computers remotely. In many instances remotely controlled computers are used to send unsolicited emails or spam without the knowledge of the owner.

Brian’s Comments: More scare tactics with little to no factual basis. Most P2P software is just as safe as other programs I am more worried about a root kit from used Sony CD’s then a P2P client. If you want to teach people how to avoid spyware give them a list of well reviewed P2P clients.

“Can we copy music if it’s online?”

Copyright can seem confusing, but it applies to digital music just as much as it does the physical CD. Copyright rules protect the artist and creator and allow them to be rewarded for their work. Some people are happy for you to copy or use their work for free, but most artists and musicians rely on copyright law to guarantee an income.

Copying music you’ve bought to your computer or player is a common activity which can generally be done without legal consequences. However distributing a song to others without the permission of the rights holders is a very different story. Unauthorised copying and distribution of copyrighted music is breaking the law, and that includes file-swapping of any copyrighted music on the best-known P2P networks such as Limewire. The recording industry has taken action against many people who have done this, with some large fines resulting.

Parents and carers can be held responsible for what happens on the family computer even if they are not themselves engaged in illegal activity.

Brian’s Comments: Copyright laws are national in scope for some countries noncommercial sharing is legal. The RIAA’s litigation and legal claims over distribution and parent liability are conjecture at best. Does it really make children safe online to SCARE them with lawsuit threats? Why not spend the time teaching them how to use the internet responsibly. This is like teaching safe sex through a scare video of STD’s without teaching how to use a condom. Finally, what about Fair Use and Fair Dealing? Both the US and Israel have strong Fair use exceptions while much of the rest of the world has other exceptions. Why only teach one side of the issue? Childnet, give parents some credit for having a brain and next time provide them with facts and options not propaganda.

Bill Ferron, Jr.

Seed IP Law Group,

Topic Revisions to the TTAB Rules and Practical Tips

Ferron spoke about the basics of a trade make hearing before the Trademark Trial and Appeals Board (TTAB). This is not a topic of particular interest to FFIP but was useful for understanding the differences between a TTAB hearing and a full federal trail. At the TTAB can be a useful vehicle for challenging marks but only on the grounds of registerability. The rest of the presentation focused on TTAB rules directly. I am escaping to spy on the patent presentation.

Scott T. Wilsdon

Yarmuth Wilsdon Calfo PLLC

Topic: RIAA and Direct Liability

Mr. Wilsdon is on the other side of of the copyfight from FFIP. With this said, Wilsdon does know the law in this area and covered the main cases from Napster to Thomas. He gave interesting insight on jury instruction number 15 used in Capital Records v. Thomson, which makes one who merely makes work available through a shared folder liable for actual distribution. This jury instruction lower the proof need to convict in p2p case to almost nothing.

Bruce E.H. Johnson

Davis Wright Tremaine LLP

Topic: Fair Use and the First Amendment

Fair Use started not as a statute but as an equitable defense to copyright infringement. Now Fair Use is embodied in Section 107 of the copyright act. Nimmer argues that some works are the inherent expression of an event or act and may not be inseparable in a traditional facts v. idea separation. One example of this is the Zapruder’s film of the JFK assassination.

The Q & A section had a lively discussion on the Harry Potter Lexicon and Fair Use v. transformational derivative works.

A Canadian organization representing several musical artists including Avril Lavigne, Sarah McLachlan, and The New Pornographers has made a very strong statement against the RIAA and DRM. I applaud the coalition for standing up for users and realizing that to succeed in a digital world we need to work with users not against them.

“Lobbyists for major labels are looking out for their shareholders, and seldom speak for Canadian artists. Legislative proposals that would facilitate lawsuits against our fans or increase the labels’ control over the enjoyment of music are made not in our names, but on behalf of the labels’ foreign parent companies.”

The CMCC is united under principles including:

Suing Our Fans is Destructive and Hypocritical
Artists do not want to sue music fans. The labels have been suing our
fans against artists’ will, and laws enabling these suits cannot be
justified in artists’ names

Digital Locks are Risky and Counterproductive (DRM is bad)
Artists do not support using digital locks to increase the labels’
control over the distribution, use and enjoyment of music or laws that
prohibit circumvention of such technological measures. Consumers
should be able to transfer the music they buy to other formats under a
right of fair use, without having to pay twice.

More information about the CMCC (including a more detailed policy
statement) is available at www.musiccreators.ca.

This is great news for music fans. EMI was the first big label to abandon consumer hated DRM on Itunes and is now making another good business choice by distancing themselves from the suit happy and equally disdained RIAA. Now we just need them to embrace a creative web based business model like Magnatune and we will have a new direction for the future of music.

As a reminder EMI is one of the Big 4 in music and has signed many popular artists from multiple genres, including The Beatles, Pink Floyd, Maria Callas, Queen, Legião Urbana, Kraftwerk, Saxon, Iron Maiden, Marillion, Tina Turner, Kate Bush, Frank Sinatra, Coldplay, Roxette, Selena and Garth Brooks.

Full story at Arstechnica

“One of the Big Four labels is apparently unhappy with its return on investment when it comes to funding industry trade groups such as the IFPI and RIAA. British label EMI, which was recently purchased by a private equity fund, is reportedly considering a significant cut to the amount of money it provides the trade groups on an annual basis.

According to figures seen by Reuters, each of the Big Four contributes approximately $132.3 million to fund the operations of the IFPI, RIAA, and other national recording industry trade groups. That money is used in part to fund the industry’s antipiracy efforts—including the close to 30,000 file-sharing lawsuits filed by the record labels in the US alone.”

PS:
Look back at our April 1st story, Major Labels Withdraw from RIAA. Maybe it was just early.