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 – Sony BMG’s lawyer says “Copying music you own is stealing.”

I was wondering when this bit of revisionism would take hold. I do not have a side in this battle (or a stake in it, when is my phone going to ring?), and for me it is purely an academic issue which should be framed thusly: “Whether format-shifting music (such as ripping a CD to your iPod) by a consumer for personal use or as a backup is a fair use under the Copyright Act.” For years the RIAA said yes, it was. For instance, during oral arguments in Grokster, the RIAA’s attorney stated to the U.S. Supreme Court:

The record companies, my clients, have said, for some time now, and it’s been on their website for some time now, that it’s perfectly lawful to take a CD that you’ve purchased, upload it onto your computer, put it onto your iPod.

Apparently, however, this was not a use that would fall under any fair use analysis, according to the RIAA, et al, but simply a license they were granting to do so. At least that is how it looked after the music industry filed a joint reply with the government as part of the triennial of the effectiveness of the DMCA. In the reply (pdf), the companies said in one footnote:

Nor does the fact that permission to make a copy in particular circumstances is often or even “routinely” granted, see C6 at 8, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright holders in the Grokster case, is simply a statement about authorization, not about fair use.

Now, in this case which should be a fairly routine one, the subject of fair use arose and here is what Sony BMG’s counsel had to say:

[Judge] Gabriel asked if it was wrong for consumers to make copies of music which they have purchased, even just one copy. [Sony BMG ‘s attorney] replied, “When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a purchased song is just “a nice way of saying ‘steals just one copy’,” she said.

For more on today’s arguments, see Sony BMG’s chief anti-piracy lawyer: “Copying” music you own is “stealing”

The content industry, however, should pick its battles better. There is a good case to be made that, under current fair use analysis, content-shifting is not a fair use, and this is a case that they should easily win. Any of the software manufacturers making CD ripping software would fail both the tests of Sony and Grokster. And why did no one sue Apple for the “Rip. Mix. Burn.” ads?

(note: I do seem to remember that both Roxio and Apple, which make a majority of the CD ripping/burning software had a deal with EMI to create “secure CDs,” but I am sure that deal died a horrible corporate slow death.)

Capitol Records, et al v. Jammie Thomas – First P2P file sharing jury trial begins

Excite News – Music Download Trial Starts in Minn.

Her trial offers the first chance for both sides in the debate over online music sharing to show a jury its version of the facts. Opening statements were expected Tuesday morning. Am amateur musician was among the jurors seated.

Arkansas IP Litigation Cases for the Week of September 29, 2007

The U.S. District Courts for the Eastern or Western District of Arkansas was chosen as the forum for litigating the following case(s), as published by Justia:

  • Virgin Records America Inc et al v. Does, Case Number 4:2007cv00863, Filed:  September 20, 2007, Court:  Arkansas Eastern District Court 

    Virgin Records America Inc, Atlantic Recording Corporation, BMG Music, Capitol Records Inc, Elektra Entertainment Group Inc, Interscope Records, LaFace Records LLC, Motown Record Company LP, Priority Records LLC, Sony BMG Music Entertainment, UMG Recordings Inc, Arista Records LLC, Warner Brothers Records Inc and Zomba Recording LLC  have sued multiple Does for copyright infringement under 17 U.S.C. § 101 et seq. for online file sharing (I have a few novel defenses for these cases I need to try out).

  • Lewis & Clark Outdoors, Inc. v. L. C. Industries, Inc., Case Number:  5:2007cv05164, Filed:  September 26, 2007, Court:  Arkansas Western District Court 

    Lewis & Clark Outdoors, Inc.  has sued L. C. Industries, Inc. for trademark infringment under the Lanham Act, 15 U.S.C. 1051 for fraudulently obtaining a federal registration for “Lewis N. Clark.”

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.


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