New Arkansas RIAA Lawsuits Coming Soon to a Federal Courthouse Near You

I have gotten a number of phone calls and emails from students (as well as parents and attorneys of students) at the University of Arkansas at Fayetteville. Suffice it to say that there is another rash of RIAA lawsuits on its way. This time, all I have seen have been on the University of Arkansas network. I work for two entities of the U of A system, so can’t comment on the disclosure of student information . . . I will however point out that in Arista v. Does 1-21, Boston Univ. recently fought the RIAA’s subpoenas. The court quashed them based on “the privacy rights of students, and the existence of First Amendment issues in disclosing the identities of anonymous people accused of copyright infringement, and engaged in a balancing test between those rights and the rights of copyright owners” The 52 page ruling just on the subpoenas is a judicial tour-de-force and a good starting point for any university that would like to fight to uphold the privacy rights of students.

I think that these cases are winnable for the defendant, mostly because no one every forces the RIAA to prove its case and because the argument that “making available” = distribution flies in the face of historical copyright law. Thankfully, the courts have begun to see this as well. . . although to differnet degrees.  William Patry, the author Patry on Copyright and copyright attorney for Google (Prof. Patry . . . if you need a passionate copyright attorney from a state school for your team, just say the word), recently worte about the three recent cases which rejected the “making available” theory on his blog. The documents from the three cases are located here:

Atlantic v. Brennan
London-Sire v. Doe
Elektra v. Barker

The most troubling of this cases is Barker, in which Judge Karas equated distribution with publication – something I do not feel is intended by section 106.

For more on this issue, read The Patry Copyright Blog: The recent making available cases 

 

Capitol Records, et al v. Jammie Thomas – Full text of jury instructions

As there has been much talk about the validity of the jury instructions in Capital Records v. Thomas, especially instruction no.s 14 and 15 , I thought it would be nice for everyone to see them in their entirety. I think that jury instructions should be taken and evaluated as a whole, as the jury see’s them, not piecemeal. While each must be a correct statement of the law on its own, the effect on the jury is as a whole. All documents related to this case can be found at Justia.

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Capitol Records, et al v. Jammie Thomas – Jurors wanted maximum fine

Jurors from Capitol Records, et al v. Jammie Thomas are talking, and what they are saying is going to make a lot of people very angry. Several of the jurors wanted to give the maximum penalty of $150,000 per song for each of the 24 songs ($3.6 million total). In the end, they compromised at under $10k per song, for a total of $222,000.

[Juror] Reinke said she wasn’t sure at first how much Thomas should pay. The jurors wrote on unsigned slips of paper the amounts they thought were right, Reinke said. They piled the papers on a table, and the foreman read off the amounts.

“A few said we could go up to 150 (thousand), and then other people said, ‘No, that’s way too high,”‘ she said. “We just all discussed it and gave our views and came up with an agreeable amount.”

In short, the jurors wanted to both punish Thomas and deter others. Read the full story at “Juror: Some on music sharing jury wanted maximum $150,000 per song, $3.6M total”

Capitol Records v. Foster: RIAA case dismissed

Capitol Records v. Foster is another case against a monther who was sued by RIAA for haivng paid for internet access. The court dismissed this one with prejudice and awarded attorneys fees for the defendant.  The defendant’s answer to the original claim is a good read, as is the order dismissing the case.

See original story here.

Virgin Records v. Marson: RIAA case dismissed due to lack of evidence

See the write-up here. After 6 months of litigation, RIAA dropped the case because they could not meet the evidenciary standard for scientific evidence. Basically they claimed she paid for the internet and word the computer where they found the shared files folder. The defendant claimed that many others had access to her computer, others had access to her unsecured wireless internet connection, and that it could have been any of those people engaging in the illegal conduct. Instead of setting a bad precedent, the RIAA agreed to dismiss. Stipulation and Order of Dismissal.

So, that brings up the issue of what is sufficient evidence in these cases. Most of the evidence will be an IP address and some screenshots of a P2P application. The issues will be ones of timing: can you prove the time stamp of the screenshots to match with who was assigned the IP address by the ISP at the time. Can you prove the screenshots were unaltered, or that someone was not spoofing the IP address. Can you prove that someone else was not also using the IP address for access at the time? (I live in a dorm with 220 college freshmen (don’t ask), and keep an unsecured wireless hub in my office. Practically anyone in my building, or one of the 2 dorms across the street could be using my wiress at any moment…. and they probably do.) Other questions are, did they download the music from the defendant, and if not, can they prove that the files shared actually contained the music that is alleged? One common tactic a few years back was for the music companies themselves to seed the P2P networks with bad files with valid metatags.

This brings up whether any of the above evidence meets the standard for evidence in Federal tort cases set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert I”), on remand, 43 F.3d 1311 (9th Cir.) (“Daubert II), cert. denied, 116 S. Ct. 189 (1995). Daubert concerned the admissibility of expert evidence that was put forth to establish a link between the use of the drug Benedictin by pregnant mothers and a certain type of birth defect. The plaintiffs experts stated that the drug could cause the type of limb reductoin birth defect alleged, and the defendant challenged the admissability of the experts statements based upon the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye standard was the test then used to determine the admissibility of scientific evidence, particularly for novel scientific evidence. Under Frye, the court looked to see whether the novel evidence was “generally accepted in the relevant scientific community.” If so, it was admitted, if not, then it was inadmissible.

In Daubert, the Supreme Court stated that the Federal Rules of Evidence had displaced Frye, and that the goal of scientific evidence is to assist the trier of fact and, thus, must be evidentiarily reliable. “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.” Daubert, 509 U.S. at 595. Under the Daubert test, the inquiry focuses on the principles and methodology of the techniques used by an expert without regard to the conclusions reached. 

In adopting the Duabert test, the Court partially readopted Frye, or to be more exact, the Court incorporated Frye’s historical application into a number of non-inclusive factors it directed the courts to use when determining whether to admit scientific evidence. The factors include:

  1. Whether the scientific knowledge can be and has been tested;
  2. Whether the theory or technique involved has been subject to peer review and publication;
  3. The known or potential rate of error for the theory or technique; and
  4. Frye’s general acceptance inquiry.

Over the intervening years,a number of other factors have been added by the courts, including:

  1. The relationship of the technique to reliable, established methods;
  2. The expert’s qualifications;
  3. The non-litigation uses of the method; and
  4. Other relevant factors.

See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n.8 (3d Cir. 1994), cert. denied, 513 U.S. 1190 (1995).  Also, over the years, Daubert has been come to be applied not only to novel scientific evidence, but all expert evidence. See. Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143 n.8 (9th Cir. 1997). Pursuant to Federal Rule of Evidence 104(a), any party can move for an hearing on the admissibility of evidence or the qualifications of a person to be a witness outside the presense of the jury. It seems then, that even before filing a motion to dismiss, a defendant would be able to hold Daubert hearings on all of these evidentiary issues. Especially on the control of the computer issue in these cases, where a minor child or children may be in the house and have other children over, a Daubert hearing might blunt the plaintiff’s case enough to get them to agree to dismiss. 

If anyone has challenged the evidenciary value of an IP address or contents of a file in an RIAA lawsuit, please point it out to me as I would be very interested.

P2P: “making available” is not “distribution”

Via the Susan Crawford blog and Corante. In 2005, in the Napster Investor case, Judge Marilyn Patel dismissed a plaintiff attempt to equate making files available (without proof of being downloaded) with an infringement of a copyholder’s exclusive right of distribution under the ART Act (Artists’ Rights and Theft Prevention Act of 2005). Under the Act, it is a criminal offense to “make available” public electronic files of prereleased material. Here is Judge Patel’s order (PDF). While an old item, I wanted to start the discussion because it will be coming up again over the next few months.

Cory Doctorow’s USC Copyright Compliance letter

Doing my Grokster note last semester, I was kicked off the network for installing Grokster and/or BitLord. I had to un-install any p2p software and promise never to use any before I could get access again. I wrote letters which have gone unanswered. Never mind the pedagogical use I was intending, or the fact that the title I was attempting to download via Bittorrent was Prof. Lessig’s Free Culture in PDF format. Cory Doctorow apparently had the same issue at USC recently (as has Aram Sinnreich). See the annotated USC Copyright Compliant letter which contains his thoughts on it. The bottom line, all schools are so scared of getting suede that they will misstate the law (ignoring fair use, use for study or academic review, etc.) just to scare people away from P2P.

update: Clarification, I go to UALR Bowen School of Law. Some have indicated they thought I was also at USC.

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