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.

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.

The RIAA threatened Muxtape with a lawsuit closing them down recently.  The side effects of throwing lawyers at problems are often not well understood.  The RIAA has effectively destroyed a central service that they could have worked with thus creating a distributed network of user hosted alternatives.  It looks like they merely cut off a hydras head… When will the RIAA learn that they need to work with users and inovaters not against them with legal threats.  Opentape is a free, open-source package that lets you make and host your own mixed tapes on the web.  Unlike Muxtape it does not automaticly provide easy links for users to buy content, in killing Muxtape they have made it harder for people to find new artist and purchase what they belive is good.

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

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:

D. Unconstitutionally Excessive Punitive Damages (Issue 9)
Westbound’s $3.5 million punitive damages award is unconstitutionally excessive and violates due process. After conducting a de novo review, see Bach v. First Union Nat’l Bank, 486 F.3d 150, 153 (6th Cir. 2007), we conclude that this award was excessive in light of the Supreme Court’s three “guideposts” for evaluating the constitutionality of a punitive damages award—the reprehensibility of defendants’ conduct, the disparity between plaintiffs’ harm and the award, and a comparison of the award and civil penalties in comparable cases. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996).12
1. Reprehensibility
Defendants’ conduct was not so reprehensible as to justify a $3.5 million punitive damage award. “Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” Gore, 517 U.S. at 575. The Supreme Court has

instructed courts to determine the reprehensibility of a defendant by considering whether: the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.

State Farm, 538 U.S. at 419. “The existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect.” Id.
Only one of these factors is present in this case—the harm was the result of intentional malice or deceit. The jury concluded that defendants acted “willfully” in light of evidence that defendants ignored pre-litigation letters and re-released the album knowing that it contained an unauthorized sample. Defendants continue to argue that the use of the sample was due to a rogue producer (Harvey), that they did not receive the pre-litigation letters, and that they re-released the album under the impression that the present lawsuit would be settled. The jury, however, rejected these arguments and found that defendants acted willfully. Although not a strong showing of intentional malice or deceit, defendants’ conduct was still somewhat reprehensible. None of the other reprehensibility factors are present. First, the harm in this case (copyright infringement) was purely economic and did not threaten the health or safety of others (and Westbound does not argue otherwise).
Second, Westbound is not a financially vulnerable victim. Westbound argues that it is financially vulnerable because it is a small company that depends almost entirely on income from sampling, because defendants infringed “Singing in the Morning” instead of Jimi Hendrix’s “Power of Love,” and because defendants had “financial clout” and “strength in the music industry worldwide.” Despite Westbound’s size, Westbound has been a plaintiff in numerous similar lawsuits, and thus has been able to protect its rights in the courts. The fact that Westbound depends on income from sampling suggests that Westbound is not financially vulnerable, as its business model requires it vigilantly to sue on its copyrights. Defendants’ refusal to use the Jimi Hendrix sample cuts both ways—it could mean that defendants actually tried to avoid copyright infringement, or it could mean, as Westbound argues, that defendants only avoided infringing copyrights owned by the powerful—but Westbound offers no evidence that the copyright owner of “Power of Love” was in a stronger financial situation than Westbound, a company that has proven its ability to protect its rights. Finally, defendants’ wealth “cannot justify an otherwise unconstitutional punitive damages award,” State Farm, 538 U.S. at 427, and thus should not be given great weight, Clark v. Chrysler Corp., 436 F.3d 594, 604 (6th Cir. 2006). Finally, there is no evidence that defendants’ infringement was one of a repeated number of actions. The repeated conduct factor “‘require[s] that the similar reprehensible conduct be committed against various different parties rather than repeated reprehensible acts within the single
transaction with the plaintiff.’” Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 1000 (6th Cir. 2007) (quoting Bach v. First Union Nat’l Bank, 149 F. App’x 354, 356 (6th Cir. 2005)). Here, Westbound argues that defendants’ infringement involved repeated actions because defendants authorized the release of the Ready to Die album without confirming that all samples were legal and sampled “Singing in the Morning” on another track on the album. Westbound’s first argument does not refer to other unlawful infringements, only the possibility that there were such acts (and defendants’ indifference to that possibility). The second argument refers to the same transaction against the same plaintiff—the use of samples of “Singing in the Morning” on the Ready to Die album. Westbound also states that it is “patently unfair” for defendants to argue that they did not repeat the illegal sampling because defendants objected during trial to any references to other unauthorized samples. It was Westbound’s obligation to introduce evidence of other unauthorized samples, and even though the district court excluded certain evidence of other ongoing lawsuits against defendants, Westbound fails to challenge those evidentiary rulings on appeal. In this case where only one of the reprehensibility factors is present, a ratio in the range of 1:1 to 2:1 is all that due process will allow. This conclusion is apparent from our court’s precedent. In Clark v. Chrysler Corp., this court held that a punitive damages award of $3 million was unconstitutional in light of a damages verdict of approximately $471,258.26, only 50% of which the plaintiff was awarded (pursuant to comparative negligence principles), where only the fact that the conduct resulted in physical harm, notably, the loss of life, weighed in favor of reprehensibility. 436 F.3d at 601, 605, 608 (Opinion of Restani, J.); 436 F.3d at 612-14 (Kennedy, J., concurring in part and concurring in the judgment). The court instructed the district court to enter a punitive damage award of approximately $471,258.26, which Judge Restani concluded was appropriate after applying a 2:1 ratio to the plaintiff’s 50% share of compensatory damages, id. at 608 (Opinion of Restani, J.), and Judge Kennedy concluded was appropriate after applying a 1:1 ratio to the total compensatory damage award. Id. at 613-14 (Kennedy, J., concurring in part and concurring in the judgment). Also, in Bach v. First Union National Bank, this court, after having previously decided that a punitive damages award of approximately $2.6 million on top of a $400,000 compensatory damages award was unconstitutionally excessive because the only reprehensibility factor that weighed in favor of a large punitive damages award was that plaintiff, an elderly widow, was a vulnerable victim, held that the district court’s remitted punitive damages award of approximately $2.2 million was still excessive and ordered the district court to remit punitive damages to $400,000. 486 F.3d at 154-56.
Our conclusion is supported by a case from the Eighth Circuit that concluded that a 1:1 ratio was appropriate where the compensatory damages award was large and the defendant’s conduct wasmore reprehensible than in this case. In Williams v. ConAgra Poultry Co., the court reversed a punitive damages award of approximately $6 million, which was on top of a $600,000 compensatory damages award for a racial harassment claim under § 1981. 378 F.3d 790, 792-93 (8th Cir. 2004). The court concluded that the district court improperly relied on evidence of non-similar acts of harassment, but that the defendant’s disparate treatment of plaintiff was still reprehensible in light of evidence that defendant extended certain benefits to white managers and employees that it did not offer to black managers and employees. Id. at 797-98. The court also considered the fact that Title VII capped punitive damages at $300,000, and that the $600,000 in compensatory damages was “a lot of money,” and held that defendant’s conduct was not “so egregiously reprehensible” to justify a punitive damages award of more than $600,000. Id. at 798-99.
2. Disparity
The disparity between compensatory and punitive damages in this case further supports the conclusion that the punitive damages award is unconstitutional, for three reasons. First, the ratio of the overall damages award to the punitive damages award—approximately 9.5:1 ($3.5 million / $366,939)—is large. Although the Supreme Court has repeatedly rejected the use of bright-line rules, it has cautioned that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process,” State Farm, 538 U.S. at 425, and it has noted that “an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.” Id. (citing Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24 (1991)); see also Clark, 436 F.3d at 606. Second, the compensatory damage award itself is very large. The Supreme Court has made clear that “[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.” State Farm, 538 U.S. at 425. In Bach, this court concluded that a $400,000 compensatory damages award was “substantial” and thus, applying “the hypothetical scenario described in State Farm, where the plaintiff has received a substantial compensatory damages award, and a ratio of 1:1 or something near to it is an appropriate result,” instructed the district court “to enter an order of remittitur reducing the punitive damages award to no more than $400,000.” 486 F.3d at 156-57. Also, in Pollard v. E.I. DuPont de Nemours, Inc., this court affirmed a punitive damages award of $2.5 million that the district court added to a total compensatory damages award of $2.2 million, which included approximately $1.2 million in back and front pay, because the ratio (1:1 overall and 2:1 when back and front pay were excluded) was close to “the 1-to-1 ratio mentioned in [State Farm] for the largest [compensatory] awards.” 412 F.3d 657, 666-68 (6th Cir. 2005). In the instant case, the amount of compensatory damages that Westbound was awarded, $366,939, is large and approximately the same amount as that awarded in Bach. See Bach, 486 F.3d at 156. Third, the compensatory damages award in this case included a punitive element. The “actual” harm that Westbound suffered is reflected in the amount of licensing fees that Westbound lost because of the infringement. In State Farm, the Supreme Court noted that a large punitive damages award is not justified where a compensatory damages award includes a punitive element that is duplicated in the punitive damages award. 538 U.S. at 426. Under the federal Copyright Act, an infringer is liable for the copyright owner’s actual damages and the profits of the infringer. See 17 U.S.C. § 504. This dual recovery of plaintiff’s damages and defendant’s profits serves two distinct purposes: damages compensate the copyright owner whereas profits “‘are awarded to prevent the infringer from unfairly benefitting from a wrongful act.’” Hamil Am., Inc. v. GFI, 193 F.3d 92, 103 (2d Cir. 1999) (quoting H.R. Rep. No. 94-1476, at 161 (1976), reprinted in 17 U.S.C.A. § 504 at 146 (West 1996)). The purpose of awarding a plaintiff the defendant’s profits from copyright infringement, therefore, overlaps substantially with the goals of punitive damages awards. It is undisputed here that the jury, in awarding Westbound damages under New York common law, followed the same formula and awarded actual damages plus profits. Westbound’s actual damages from the infringement were lost licensing fees of $43,478 (without interest) and $51,946 (with interest). Accordingly, the ratio of the punitive damages award and the non-punitive element of the compensatory damages award is very high.
Even if we were to accept Westbound’s argument that the correct ratio is 3.5:1—which it calculates by including Bridgeport’s share of compensatory damages ($366,939), even though Bridgeport elected statutory damages, and interest ($276,763.93)—the ratio indicates that the award is excessive. If these additional amounts were included within the compensatory damages award, that award would be significantly larger and, as discussed above, a substantial compensatory damages award means that a lower ratio is needed to satisfy the requirements of due process. See State Farm, 538 U.S. at 425. In addition, the smaller ratio would not change the fact, also discussed above, that the compensatory damages award included a large punitive element.13
3. Civil Penalties Comparison
Finally, the amount of statutory damages available under the federal Copyright Act contributes to the conclusion that the punitive damages award in this case was unconstitutional. The Copyright Act provides that a plaintiff may elect statutory damages in lieu of actual damages and profits, and may ordinarily receive no more than $30,000 in statutory damages. 17 U.S.C. § 504(c)(1). But if the plaintiff proves that the “infringement was committed willfully,” the plaintiff may receive statutory damages of up to $150,000. Id. § 504(c)(2). Accordingly, the ratio of the punitive portion to the compensatory portion of statutory damages under the Act is 4:1 (($150,000 – $30,000):$30,000). Of course, $150,000 is the maximum allowable, and thus would be the largest award that a victim of copyright infringement could receive irrespective of the reprehensibility of an infringer’s conduct. Here, defendants’ conduct, although willful, was not highly reprehensible. In addition, as discussed above, the size of the allowable ratio fluctuates with the size of the compensatory damages award, and thus the 4:1 ratio in the Act suggests that a smaller ratio for a larger damages award is appropriate.
4. Summary
Given the large compensatory damages award of $366,939, a substantial portion of which contained a punitive element, and the low level of reprehensibility of defendants’ conduct, a ratio of closer to 1:1 or 2:1 is all that due process can tolerate in this case. Therefore, we remand to the district court for a remittitur of the punitive damages verdict (or a new trial). See Bach, 149 F. App’x at 367.

Foot note:
13
Because we conclude that the ratio when calculated according to the overall punitive damages award indicates that the award was excessive, we need not also address defendants’ argument that the appropriate ratios should be calculated by comparing the amount of punitive damages assessed against each defendant measured against the profits
for each defendant, which yield ratios of 5:1 for Bad Boy Entertainment, 73:1 for Bad Boy LLC, and 58:1 for UMG.

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.

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.

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.

“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.

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.

Mr. Godfrey,

Instead of indirectly threatening students, why not take some action? For
example:

1. Fight the RIAA, as does the University of Wisconsin.

University of Wisconsin refuses to forward the RIAA letters you are so ready
to forward because they “short circuit the legal process to rely on
universities to be their legal agent”, according to Brian Rust of UW’s IT
department.
http://www.eff.org/deeplinks/archives/005164.php
http://consumerist.com/consumer/riaa/university-of-wisconsin+madison-will-not-forward-riaa-letters-to-students-245211.php

2. Bill the RIAA for these letters, as does the University of Nebraska.

In addition to not forwarding the letters, UN demands reimbursement of $11
it costs Nebraska taxpayers to process each RIAA letter.
http://consumerist.com/consumer/riaa/university-of-nebraska-will-bill-riaa-11-for-each-threatening-letter-received-246813.php

3. Tell the RIAA to “take a hike”, as recommended by the Harvard Law School.
http://cyber.law.harvard.edu/home/home?wid=10&func=viewSubmission&sid=2801

I cannot say it better than the authors of the Harvard Law School article
mentioned above:

“If the RIAA wants to stimulate conversation, then it should engage in
genuine dialogue. Come join us on campus. Come talk to the digital natives
who are our students, to the faculty who care about fair intellectual
property protections, and to the university counsel and technical teams who
manage our strategies and operations in cyberspace. The RIAA should be
asking, along with the rest of us, if we can come up with models that reward
artists for their work while allowing the maximum circulation and use of
their creations, as our Founding Fathers intended.”

Before returning to the U.W. School of Oceanography in 2004 for graduate
studies, I was co-founder and CTO of Singingfish.com, an Internet startup
that indexed the Web (like Google) for links to audio and video files. In
addition to addressing various URL linking challenges (ultimately protected
by the Digital Millennium Copyright Act), I regularly encountered
technologists of the RIAA and IFPI (representing the recording industry
worldwide) at MPEG conferences where we battled over standards for metadata and
digital rights management.

I would be happy to discuss this further with you over some legal beer and
music. You may be surprised at the local expertise (and funds) that would
rise to the challenge of more creative action by U.W.

Regards,

Eric Rehm
Graduate Research Asst.
Applied Physics Lab, Ocean Physics Dept.
University of Washington
(reprinted with permission)

If you want to let UW know what you think about the policy please write:

Eric S. Godfrey
vice provost for student life
(206) 543-0128;
Box 355831
Vice Provost, Student Life
476 Schmitz Hall
FAX: +1 206 543-2965
[email protected]

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