My Response to Prof. Charles Nesson re Tenenbaum

Concerning the Tenenbaum case, Prof. Nesson of Harvard, who led Joel’s defense, has asked me on a closed academic list, on his blog, and on my blog “on what issue might I have prevailed had I offered what you imagine to be a good defense?”

Here’s my response.

********************

Dear Charlie:

First of all, given the facts as they have come out both before and as reported in the various media during the trial (I obviously haven’t seen the transcript), I still tend to doubt that this was a particularly winnable case.

BTW, in 2004 we “won” this battle in Canada before it ever really started by preventing the disclosure of the names behind IP addresses in the Canadian version of the RIAA’s attempt to sue individuals. And we have a similar statutory minimum damages regime here, inspired by the USA but with some differences such as a max of CDN $20,000 per work. Still quite dangerous. The Canadian record companies were unable or unwilling to provide sufficient admissible evidence to warrant this disclosure in light of the “risk that the information as to identity may be inaccurate”, the resulting exposure to serious civil liability and the invasion of privacy. We were helped by a pretty good federal privacy statute in Canada and at least two ISPs that seriously stood up for their customers at the time (Shaw and Telus). See here and here. I was involved on the winning side. It’s really too bad that these cases weren’t likewise stopped at the outset in the USA, but that battle appears to have been lost a long time ago in other cases.

There's really not much I can add to my original blog post from August 3, following the July 31 verdict and my other posts on this.

I can point to Ray Beckerman's “wish list”, which outlines several possible technical and practical arguments based upon such matters as dates of registration, lack of proof of actual “distribution” according to the language of and case law on § 106(3), etc. which might or might not have worked to get Joel off the hook. Ray also mentions our Canadian case in his point that “Plaintiffs should be required to prove that the downloaded song file copies were played and listened to, and their contents verified, by a person qualified to make such determination. See Deposition of President of MediaSentry in BMG v. Doe.”

I don't know which of these issues were addressed at trial or how much evidence on these issues there is on the record.

Apart from a victory based on issues such as those on Ray's “wish list”, the only other conceivably “winnable” issues might have been a very uphill fair use argument and a potentially more successful argument on the unconstitutionality of the statutory minimum damages provisions. I know you have tried to pursue both of these issues.

• Fair Use. If there was a winnable argument here, which far greater experts than me have doubted according to your own blog, it would probably have involved a lot of analysis of the fourth factor (“the effect of the use upon the potential market for or value of the copyrighted work”) and this would presumably have required a lot of economic evidence. This evidence might have come, for starters, from your Harvard colleague Oberholzer-Gee and/or Andersen/Frenz in the UK as expert(s) to show that there was evidence as to no overall harm and maybe even a “benign” or “positive” effect on “the potential market for or value of the copyrighted work”. At least such evidence might have enabled Judge Gertner to deny summary judgment on this issue. It would have also enabled a great debate with the very able Stan Liebowitz, with whom one may disagree - but he is still a very accomplished and important economist in the IP area and an experienced expert witness. Maybe other evidence in addition from someone with knowledge about the economic insides of the record industry would have helped. I frankly doubt, as you have suggested in the Canadian media in your interview with Jesse Brown, that the lack of “fairness” on the part of the record industry either in the way it has marketed music to its customers or treats is customers in its litigation campaign is a winnable fair use argument under §107, even if you are right that the four factors are not “exclusive” and that Court can go beyond the four factors and even devise a new “fair use” affirmative defense. Whether or not there is the makings of a potential “abuse of process” or Posnerian “misuse” of copyright argument or something along these lines is hypothetically an interesting issue to speculate upon for another day, but doesn’t seem to be on the record here and would also presumably require a lot of solid evidence.

• Unconstitutional statutory minimum damages. This seems potentially much more winnable than fair use. But if there is a winnable argument here, it would probably also require lots of evidence to show that a statute that permits an award of up to $150,000 per work in these circumstances and $22,500 per work times 30 works as actually awarded for downloading and supposedly sharing 30 songs that sell for about $0.99 each retail goes so far beyond any possibly valid “deterrent” or “punitive” purpose that it is, on its face, unconstitutional. Unfortunately, the SCOTUS may not see this as self evident. Again, maybe Oberholzer-Gee or Andersen/Frenz could have helped here, and perhaps other experts on the economics of the music industry, how file sharing actually works, how many of the ocean of unauthorized downloads can be causally attributed to Joel, and the overall question of proportionality. Maybe some expert sociological or criminological evidence on “deterrence”. But given the post-Eldred approach to deference to Congress on quantifiable copyright policy matters such as extending the term from life + 50 to life + 70, I would imagine that you would now need a great deal of solid evidence to show that this choice of a numerical range of a minimum of $750 and up to $150,000 per work for willful infringement is not only beyond “arguably unwise” but also somehow clearly unconstitutional. For better or worse, “unwise” and “unfair” may not equate with “unconstitutional.” BTW, there is an important article in the works by Pam Samuelson and Tara Wheatland, which I’m sure you know about, but for the benefit of other readers can found here as a work in progress (recently revised).

Best regards,

Howard
****************
HK

PS: August 25, 2009: PS - Prof. Nesson's comments on the above are on his blog here.

The Tenenbaum Case: A Court Room is Not a Class Room

A while back, I suggested that:

If Joel somehow wins, the RIAA has a big problem.

If there is a judgment of tens of thousands of dollars against Joel, then Joel has a big problem.

If there is a judgment of hundreds of thousands against Joel, then both he and the RIAA have a big problem.

If there is a judgment of millions against Joel, it's mostly the RIAA's problem.

(emphasis added)

Ben Sheffner, who has covered this trial really well despite his admitted sympathy for the RIAA’s position, agreed with me.

A jury in the Federal Court in Boston on July 31, 2009 found Joel Tenenbaum liable for $675,000 for willfully downloading and distributing 30 songs. That’s $22,500 for each song. That's my third bullet.

According to Ben Sheffner's, Joel has said if that $675,000 stands, he will be filing for bankruptcy.

I wonder whether anyone on the Harvard Joel Fights Back team has told Joel that bankruptcy may not discharge a debt for "willful" infringement under US law.

I wonder what other advice Joel was given by the legal team led by Prof. Charles (“Billion Dollar Charlie”) Nesson, the famous evidence and cyberlaw professor at Harvard Law School(“HLS”) and the enthusiastic Berkman Center law students and some veteran Boston practitioners.

There are going to be a lot of questions as to why Joel didn't settle at the outset for a few thousand dollars, and whether he was later well served by the controversial strategy and behaviour of Prof. Nesson. What convinced Joel to take such an enormous risk?

It's not clear from all the tweet and blog reports that there was much if any evidence led by Nesson or elicited on cross examination that could have helped Joel with respect to such obvious issues as:

• A fair use defense, however unlikely it would have been to succeed. In fact, the defense was thrown out by the Judge before the trial because of a complete lack of evidence that might have somehow supported it. Prof. Oberholzer-Gee, also at Harvard, was the obvious expert witness who might have helped Joel on this front. His study is or ought to be known to everyone familiar with the P2P debate. If fair use was the Hail Mary pass that Prof. Nesson was counting on, he was told by Lessig, Fisher, Seltzer etc. etc. that it was a loser of an argument. Nesson notoriously published many of the emails from his colleagues confirming that the argument was hopeless. Although he persisted with it, he marshalled no relevant evidence in the Judge’s mind even to give it a chance of getting heard. Apparently, no attempt was made to use Oberholzer-Gee until about a week before the trial, which was least three months too late. If Oberholzer-Gee was not available, there were others (i.e. Andersen/Frenz 2008) who could have countered Stan Liebowitz - the able economist and very experienced expert witness called by the RIAA.

• A constitutional argument about statutory minimum damages that range from $750 to $150,000 per work for much less than a dollar’s worth of actual damage. Again, Oberholzer-Gee might also have been useful here to argue that P2P sharing does no overall harm to the music industry; and,

• Whether there was any actual distribution of each of the songs to anyone other than the Media Sentry investigator.

Instead, Nesson made great efforts to call his son-in-law, Wayne Marshall, an ethnomusicologist, to give expert testimony about the cultural aspects of how and why music is “shared” and John Palfrey about “digital natives.” The Court correctly and predictably concluded that none of this was relevant.

Nesson opened Joel’s case with a lecture about the Necker cube and how things can be ambiguous and not as they seem. He also crushed some styrofoam, to show how albums have become “bits.” This is probably very entertaining in a class room.

Morever, Nesson disobeyed the Judge’s orders about recording depositions, phone calls, etc. There are show cause proceedings pending that could result in sanctions against him and/or his hapless client. Hopefully, Joel at least will be spared this last further misery.

Nesson asked the jurors if they would mind if he wore a turtleneck to court, and presumably did so. In Canada, lawyers wear robes at trials. I must say that this a one tradition worth keeping, for obvious reasons. (Especially as one who still has a full head of mostly black hair, I am glad that we at least don’t have wigs in Canada).

Nesson apparently didn’t realize until just before trial that Joel was on the hook for 30 songs and not just seven. He admitted that he “missed” that point. At what turned out to be $22,500 per song, it’s a significant point.

At the conclusion of the Defendant’s very short case, Nesson reportedly used his son-in-law to provide a computer demonstration about how to buy a song on Amazon, though the purpose of this seems quite unclear.

Reportedly, throughout the trial, Nesson drew many rebukes from the Judge and some objections were even anticipated and sustained by the Judge before they were made.

Finally, in closing arguments, Nesson reportedly made a blatant and apparently improper attempt at jury nullification, which was stopped by the Judge.

Above all, Nesson seemed obsessed with getting this trial webcast and went so far as to file one or two hopeless petitions in the US Supreme Court (it’s a bit confusing, since one didn’t actually get filed) to stay the trial pending resolution of this issue. Given the way things turned out, it’s probably just as well that nobody got to see this week of failure for Joel and the clearly shattered defense strategy that depended entirely on a far fetched theory of fair use, Necker cubes, and crumbled styrofoam.

Not having taught at Harvard, I’m perhaps not qualified to give Prof. Nesson a lesson. But, as any practising lawyer knows, a court room is not a class room.

Given the litany of problems in the defense of Tenenbaum, the result is hardly a surprise. However, given the stature of Prof. Nesson, HLS, and the Berkman Center, the nature of the defense was very surprising. Nor is it surprising that HLS has been apparently been taking actions that might suggest that it is trying hard to distance itself from this as the outcome was becoming apparent.

The award of $22,500 for each of 30 songs is interesting. The amount of $22,500 happens to be precisely the amount that the minimum of $750 per song times 30 songs would yield. Is it just possible that the jury screwed up in filling out the form and meant to award a total of $22,500, the minimum possible amount given the directed verdict on liability? Not likely - but some are wondering. It’s an odd coincidence. Ben Sheffner claims that this is not possible.

The award of $675,000 is a high enough award to make the RIAA look bad, especially if it actually tries to enforce it. Nonetheless, the award it is in a range that is conceivably enforceable, even it leaves 25 year old Tenenbaum financially crippled for decades and even the rest of his life. But it may not be sufficiently large and the apparently sparse evidentiary record left by Nesson on the constitutional issue may not be sufficiently adequate to sustain a finding of unconstitutionality of the statutory damage provisions or to attract the attention of the US Supreme Court on a constitutional basis.

This is a very sad moment for Joel, his family and those doubtless bright and idealistic students at HLS’s famed Berkman Center who tried to help him. This was not a good day for HLS, to put it mildly. Even if HLS has no legal responsibility to make Joel whole, HLS’s good name is going to be attached to this trial in the public perception. A lot of lawyers and academics too have been quite concerned about how Joel’s defense was handled - most notably Ray Beckerman.

As for Prof. Nesson, he would be consistent with his previous strategy of being “open”, if he would now explain just what his strategy was and what he thinks can now be done to make Joel whole.

In fairness to Nesson, it must be said that it’s not clear that this was ever a winnable case under American law. But that said, why then go to trial and take such a obvious risk of hundreds of thousands or more against long odds to save a few thousand? The only realistic hope was and remains a finding that the statutory minimum damage provisions are unconstitutional. But that’s also a real gamble and the odds were and remain heavily against Joel. Even that argument requires a sufficient record of evidence - which may or may not be there. Nesson, who is reportedly a brilliant poker afficionado, and who advocates its use in teaching law (here he is on Colbert) played out the cards here. But is was his client, Joel, who lost. Big time.

No doubt there will be an appeal. Perhaps there will be a new trial, if only because the Judge ruled that Joel’s admission of liability had to result in a directed verdict on that issue. Arguably, Joel could admit to downloading but not to liability, which is a legal conclusion. Frankly, however, it doesn’t look as if this jury would have spared Joel on liability even if they were given that issue to decide.

Ironically, at the end of the day, Joel might have been better off with the maximum $4.5 million award. Such an maxed out award might have been useful in helping to get the attention of the US Supreme Court.

The fear is that this case will be remembered for the fact that a typical middle class college kid, one of many millions, who loved popular music and downloaded and (supposedly) shared hundreds of songs and who had one of the most famous law professor/lawyers in the USA, a veteran Boston law firm, and a team of brilliant Harvard students behind him still couldn’t beat the RIAA.

This may discourage others with better cases, better strategies and more pragmatic counsel from pursuing winnable cases and making a lack of distriubtion, constitutional and maybe even conceivably a fair use argument based upon a solid record.

The lesson for Canada is to get rid of these dreadful draconian statutory damages that can and will be used against ordinary individuals for ordinary activity. Such laws and the way they are exploited by the RIAA and were attempted be exploited by CRIA in Canada do not promote respect for copyright. They do exactly the opposite.

The result from the Tenenbaum trial is that that everyone lost.

HK

PS - August 23, 2009 - I've posted my response to Prof. Nesson's comment below here.

Predictions for the Tenenbaum Trial

Joelfightsback.com/BostonGlobe.com

The Tenebaum civil trial for downloading and file sharing is set to start in Boston in one week on July 27, 2009. Above, that's Joel and his Harvard student team defenders on the left and their nothing if not controversial and by most accounts either "crazy like a fox" or just plain "crazy" lead counsel, the celebrated Prof. Charles "Charlie" Nesson of Harvard Law School, aka "Billion Dollar Charlie" for his successful role in the real life case against W.R. Grace as depicted in "A Civil Action."

There are four notable sites to track this event. Joel's site is here. Charlie's blog is here. Ray Beckerman's pro defendant blog is here. Ben Sheffner's pro RIAA blog is here.

Essentially, Joel is on the book for up to $4.5 million for the 30 or so songs that the RIAA is claiming for @ up to $150,000 each. That's the potential result based upon statutory minimum damages.

Charlie has conducted a very open and controversial defense, even publishing a bunch of emails from notables such as Lessig, Fisher and others advising that a fair use defense doesn't have a chance.

In my view, the only thing that can be predicted out of all this is as follows, assuming that Joel is an ordinary middle class student and not unusually rich:

• If Joel somehow wins, the RIAA has a big problem.
• If there is a judgment of tens of thousands of dollars against Joel, then Joel has a big problem.
• If there is a judgment of hundreds of thousands against Joel, then both he and the RIAA have a big problem.
• If there is a judgment of millions against Joel, it's mostly the RIAA's problem.

Bankruptcy law in the USA doesn't necessarily discharge judgments for "willful" copyright infringement. See Fred Von Lohmann's analysis here.

But it's hard to imagine even the RIAA members pursuing an ordinary college student or a single mother of two such as Jammie Thomas for the rest of their lives for chunks of their wages or other modest income or assets. But then, who would have thunk that the RIAA would have sued children and dead grandmothers?

The higher the award, the more likely it is that Congress and/or the Supreme Court might get very interested.

Whatever happens, it will be interesting for all who are watching. Whatever else Charlie has done, he has made sure of that much.

BTW, all eyes are on Judge Gertner in the meantime to see how she rules on several outstanding issues, including an order to show cause arising out of some of Charlie's postings on the internet.

HK

Nesson's Apology

In the increasingly stranger than fiction case of Sony v. Tenenbaum, Harvard Professor Charlie Nesson has filed a Notice to "apologize" for not withdrawing his motion to compel deposition of the ubiquitous Matthew Oppenheim.

Here's Ray Beckerman's comment.

HK

NZ Government Runs For Cover on Copyright

With friends like this, the RIAA, IFPI and MPAA hardly need enemies. The current NZ Government is clearly running for cover to distance itself from the "three strikes"/no rule of law/absence of due process/industry defined infringement approach of the previous NZ government. It seems prepared - indeed eager - to repeal the controversial s. 92A of its copyright legislation even before it comes into force. As is being reported:

Calls to scrap the controversial new internet copyright law are increasing ahead of the Government's March 27 deadline for a decision on its future.

United Future leader Peter Dunne, the minister of revenue, today compared it with the ill-fated Electoral Finance Act (EFA).

"The EFA arguably started out with good intentions but those became overwhelmed by the impracticalities of the legislation," he said on Radio New Zealand.

"In the end it became a pariah, it literally brought a government down and Parliament has now repealed it. I would have thought we would have learned a lesson."

Mr Dunne is the second government minister to oppose the new law.

(emphasis added)

One can only hope that the "lesson" isn't lost on the UK government, the Canadian government, and others that might be entertaining thoughts of such ill-conceived legislation and lobbying visits from such entertainment industry organizations as CRIA and its lobbyists.

HK

"Digital Britain" Debacle?

(Photo of Carter - The Guardian) (Photo of Lammy - Facebook}

On Friday the 13th of March, 2009, news came that the UK Government released a new report called Copyright in a Digital World: What Role for a Digital Rights Agency?

It can only be described as a rambling and barely comprehensible endorsement of the privatization of copyright policy and enforcement in a way that will pander to the major European and mostly American sound recording and motion picture industries.

The document could have been written by IFPI and BPI, with some help from the RIAA nad MPAA. Actually, it probably should have been written by them, because it would at least have been more readable, better edited, more logical and certainly more aesthetically presented. It might have even had some of the usual litany of “piracy” statistics to warn of the imminent collapse of creativity and innovation as we know it, and the diversion of countless millions (or is it billions?) of pounds, Euros US dollars and every other major currency to terrorism.

To the extent I can make any sense of this document, it calls for a “Digital Rights Agency” that would be run and funded by the private sector, to which would be delegated a huge range of roles and responsibilities ranging from rights clearance to enforcement. This, of course, would best serve the public interest and ensure that the UK becomes “the world’s favoured destination for creative companies to grow and invest”, according to the Ministers responsible.

Actually, this would be an un-agency, if the Ministers are to be believed:

But we need to be absolutely clear. Although we think that a rights agency of this sort could be a vital step in building an environment in which copyright can be protected and exploited, we are not proposing that Government should set up and run such an agency. This is emphatically not a proposal for a new government regulator. Instead, we are inviting industry to come together to create a body that could tackle those parts of this agenda that are for industry to deal with. In pursuit of that we are happy to work with industry as a convener and a facilitator in this rocess.

Very reassuring.

Oh yes, and ISPs would be required to rat on their most “serious infringer” customers to any individual rights owner.

Lots of talk about “Value chain”, “Enablement” and other content industry code words for control and suppression of innovation and access.

Talk about protocol blocking and bandwidth limitation. Just what the founders of the internet had in mind, I’m sure. Not.

This is consistent with the suggestions for an IP Czar in the USA and some sort of privatized policy making in Canada. Ministers Stephen Carter and David Lammy frankly seem to have lost it lately - and are the laughing stock of such normally IP rights respectful folks as my feline, human and humane friends as the IPKat - who are very derisive about all of this.

And last but not least, this document calls for comments by March 30, 2009 - i.e. in about two weeks or so. This must be an emergency on par with the global financial meltdown, in order to warrant such a demand for rapid response. Or perhaps, the Brits have taken a cue from Canada’s current paradigm for disingenuous calls for consultation that consists of setting deadlines that cannot realistically be met and ignoring whatever submissions that somehow manage to be made in any event.

This is clearly another example of US based policy shopping, which is imploding in New Zealand, (where even Google has weighed in against the RIAA and MPAA inspired approach) and hopefully will implode shortly in the EU.

HK

SONY v. Tenenbaum - Setback for Defendant

Judge Gertner has not only denied a defendant's "Motion to Compel the Deposition of Matthew Oppenheim" - a ubiquitous RIAA lawyer whose role is apparently unclear to some.

She has gone on to say:

While the Court understands that counsel for the Defendant is a law professor, and that he believes this case serves an important educational function, counsel must also understand that he represents a client in this litigation -- a client whose case may well be undermined by the filing of frivolous motions and the failure to comply with the Rules. Submission of a plainly flawed motion cannot be justified as a clinical exercise. The Court will not hesitate to impose appropriate sanctions, including potentially substantial costs, should the Defendant waste either the Plaintiffs' time and money or scarce judicial resources by filing frivolous motions in the future.

Ouch!

HT to Ray Beckerman.

HK

RIAA RIP?

This blog normally doesn't deal with rumours. But this one about massive RIAA layoffs and possible reorganization and merger with IFPI and a rethinking of its failed strategies is getting some serious coverage in Wired and Techdirt.

The stories seem to trace back to this posting.

Could it be that the major labels are finally realizing that there is something called the internet that could be beneficial to them and there are people called customers who should not be sued and/or deprived of their internet access?

Maybe its time for Hope and Change...

HK

Three Strikes Now Into Overtime in NZ

The "three strikes" battle is now into overtime in New Zealand. Suddenly, the odds have turned around from what seemed like a done deal.

The overwhelming protest against the the "three strikes" legislation due to take effect in NZ on February 28, 2009 has caused the Government to delay its implementation.

Prime Minister John Key said today that its implementation date would be pushed back to March 27 to see if the sector can come up with a workable code of practice.

“We are hoping that by that time we will have come up with a voluntary code of practice,” said Mr Key.

If one could not be agreed then the section in question would be suspended, he said.

Here's the report from 3News.

While this ain't over 'till it's over, this is already a sobering lesson to any government that thinks it can painlessly implement "maximalist" copyright "made worse in Canada" legislation based upon American law and the whining of American lobbyists or their Canadian proxies.

It is well known that the American entertainment lobby was very unsatisfied with Canada's proposed "notice and notice" regime, one of the few sound, balanced and "made in Canada" aspects of Bill C-61. In fact, this is one of the reasons why the IIPA (basically an emanation of a boutique Washington law and lobbyist firm representing certain major IP trade associations, including the RIAA and MPAA) has accorded Canada the honour of being nominated to the USTR's 301 "Priority Watch List" for 2009, as it has since Canada was promoted from the more plebeian mere "Watch List" in 2007.

The Americans have been trying to plant "three strikes" in NZ and elsewhere (e.g. France, UK) for some time. Let's hope that the Canadian government doesn't give this the time of Minister of International Trade Stockwell Day.

HK

RIAA Propaganda - Grades 3-8

In a school propaganda campaign that actually makes the late and unlamented Captain Copyright caper by Access Copyright seem almost reasonable by comparison, the RIAA is after little kids from Grades 3 to 8 - where "piracy" apparently rules.

Dear Parent: Your child is participating in Music Rules!, an educational program designed to help lay the foundation for respecting all forms of intellectual property, especially music recordings. Made possible by the Recording Industry Association of America, this program also promotes musical and artistic creativity and encourages children to use computer technology responsibly.

In school your child is learning the rules against “songlifting” – a new term for making copies of music recordings without paying for them. Like shoplifting, songlifting is illegal, and as your child learns why, he or she will also learn the basic principles of copyright protection and how they apply to all types of intellectual property.

This campaign introduces the concept of "songlifting" and the notion that any unauthorized download is a $0.99 loss. That's a good exercise in arithmetic to train these emerging scholars, isn't it?

I invite readers to take lots of GRAVOL® and go through this to extract and disseminate the most ridiculous and offensive material. How do we count the ways?

It's hard to imagine how any conscientious school officials or teachers could be complicit in the dissemination of such propaganda.

I hope that the CRIA isn't getting ideas from this. So far, it seems to have been somewhat more subtle. After all, this is Canada.

HT to Ray Beckerman for ruining may appetite for lunch today.

HK

Is Three Strikes on The Way Out?

Controversy continues about New Zealand's ill-conceived three strikes regime that is due to take effect on February 28, 2008. LIANZA, an association that represents 460 public, educational, commercial, industrial, legal and government libraries in New Zealand is joining the chorus demanding delay or revision Their concerns are reported to be mainly:

“As written, every person or organisation that has a website is an ISP, as is every library, school, educational institution, association, government department, company, business and office that provides Internet access to its users or to its staff,” it says.

The second concern for LIANZA is that organisations may have their internet connection terminated over accusations of law breaches, without the allegations being proven.

BTW, it's always good to see emboldened and articulate librarians taking an independent stand and not passively accepting bad policy and bad legislation. Hopefully, this spirit that is alive and well at least in New Zealand and the USA will also come to Canada.

Meanwhile, Michael Geist has pointed to a Times article indicating that the push to three strikes is out in the UK.

As the American and Canadian RIAA and CRIA litigation have shown, information from record companies about alleged so-called piracy is notoriously unreliable. It is inconceivable that they be given any power to unilaterally force the termination of internet service to anyone.

Hopefully, we will see the end of any further movement to "three strikes", would makes IPSs (however they may be defined) liable from all sides, obliterate the presumption of innocence, and put unprecedented and unchecked power into the hands of national record industry organizations , while depriving citizens of the protection of the courts for all practical purposes.

Hopefully, New Zealand will repeal this law before it takes effect.

HK

McCullagh on MacBride

Declan McCullagh has a story on President Obama's appointment of a senior BSA enforcer to a senior position at the Deaprtment of Justice:

For his vice president, Barack Obama chose Joe Biden, a senator with a long history of aiding the Recording Industry Association of America. Then Obama picked the RIAA's favorite lawyer, Tom Perrelli, for a top Justice Department post.

Now, as one of his first official actions as president, Obama has selected the Business Software Alliance's top antipiracy enforcer and general counsel, Neil MacBride, for a senior Justice Department post. Among other duties, MacBride has been responsible for the BSA's program that rewarded people for phoning in tips about suspected software piracy...

Is there a pattern emerging here? If there is, will be soon see a balanced pattern?

There is some speculation that antitrust enforcement could stiffen up - which could help to establish balance.

HK

Joel Fights Back & RIAA litigation live

The RIAA - once eager to use the courts to create a great chill about downloading and "making available" - is now trying to suppress publicity about its litigation. Doubtless because the litigation is turning against them.

The RIAA was unsuccessful in blocking live TV and subsequent web coverage of an important forthcoming motion on January 22, 3009 in the Tenenbaum case, where the defense is being led by Harvard's well known Prof. Charlie Nesson.

Here's the Court's ruling.

And here's the BMV v Tenebaum website named Joelfightsback.com

HK

RIAA Abandons Mass Litigation? - The Good and the Bad News

There’s a story today in the Wall Street Journal that the RIAA is about to “abandon” its mass litigation campaign that has so far scored, scared, and/or scarred some 35,000 individual victims (technically described more accurately as “defendants”) to date. According to the article, "The RIAA said it plans to continue with outstanding lawsuits."

The good news is, presumably, that there will no longer be lawsuits against 12 year old children, dead grandmothers, and teenage transplant patients - although the RIAA apparently reserves its right to sue “people who are particularly heavy file sharers, or who ignore repeated warnings.”

Who knows what “particularly heavy” means - perhaps more than 10 songs? And isn’t “three strikes” all about repeated warnings? But let’s not be too negative at holiday time.

The bad news is that the RIAA is reportedly working on cutting deals with ISPs to invoke a “three strikes” regime against what the record industry considers to be “piracy.”

As the WSJ notes:

The RIAA said it has agreements in principle with some ISPs, but declined to say which ones. But ISPs, which are increasingly cutting content deals of their own with entertainment companies, may have more incentive to work with the music labels now than in previous years.

Some ISPs seem to have been burning the candle at many ends for a long time, and the current throttling initiatives may well be part of such an agenda.

So - if the music industry and the ISPs get into bed with each other to invoke such a regime, what would happen?

• Would there be countless wrongful "terminations" based upon the usual litany of mistakes that have surfaced in identifying alleged unloaders over the years - i.e. use of insecure routers and wi-fi, simple incompetence, etc.?
• Would essential VOIP phone service get cut off for people whose lives depend on it?
• Would there be class actions against ISPs in the USA for wrongful termination of service?
• What will the US FCC, FTC and/or DOJ have to say about all this?

One is almost tempted to prefer the known devil, largely because it may be about to go down in flames anyway as a result of several pending American court cases and possibly bring down the excessive aspects of the American statutory damages regime and “making available” doctrine along with it. Maybe this explains the reported change in strategy...

And what could this all mean for Canada, where some ISPs are perhaps getting rather too cozy with the big four CRIA members and no longer seem to care very much about their customers' wishes, since being half of a duopoly means rarely having to say you're sorry?

HK

Irving Brecher 1914-2008 - Writer and Fighter

A great behind the scenes figure in American film and TV has died at the age of 94. According to the New York Times:

Irving Brecher was born in the Bronx on Jan. 17, 1914, and he grew up in Yonkers. At 19, after a brief stint covering high school sports for a local newspaper, he took a job as an usher and ticket taker at a Manhattan movie theater, where he learned from a critic for Variety that he could earn money writing jokes for comedians. Knowing of Milton Berle’s reputation as joke-pilferer, he placed an ad in Variety, reading, in part: “Positively Berle-proof gags. So bad not even Milton will steal them.”

He worked with Groucho Marx, Milton Berle, Judy Garland and many other legendary figures.

Brecher was a fighter for writers, and was active even at the age of 93 in the writers' strike of 2007.

This is the kind of person that the copyright system needs to protect. The American system is amongst the worst in the world in this respect, with its notorious "work for hire" doctrine that essentially deprives many creators in the film and television industry of their full copyright entitlement by deeming the employer, and not the employee, to be the author - even if that person is a freelancer. Naturally, most writers in Hollywood, New York and elsewhere in the USA don't have the bargaining clout to get past the definition of "work for hire" in Section 101 of the US Act.

A few years ago, the RIAA succeeded in sneaking though an amendment that would have dragged sound recordings into this definition. According to a 2000 Salon aricle:

Last November, acting at the RIAA's request, Mitch Glazier, then chief counsel for Congress' copyright subcommittee, inserted the "sound recording" amendment to an unrelated bill. (The bill in question, the Satellite Home Viewer Improvement Act, had been green-lighted for safe passage through Congress.) The change effectively made all new commercial cassettes and CDs -- from Britney Spears to Slipknot, from Eminem to Andrea Bocelli -- a new category qualifying as work for hire.

No hearings were held, no public debate took place and no member of Congress sponsored the act. Glazier, who now works for the RIAA, consulted only a handful of congressional assistants last fall. He was able to make the change because he explained the alteration was non-controversial and technical in nature.

The the credit of the American system, but not the RIAA, the amendment was quickly repealed when people found out what had happened.

But back to Mr. Brecher. A fascinating figure from a bygone and much more creative era has passed away. May his memory be a blessing.

HK

Constitutional Challenge to RIAA's statutory damage claims...

The well known Harvard professor Charlie Nesson is leading the charge on a challenge to the constitutionality of the statutory damage provisions in the US Copyright Act.

Here's his latest filing and a brief commentary.

HK

No DOJ Subsidies for RIAA etc. Litigation

The Bush administration has stopped an attempt by the RIAA, MPAA and others to turn the US Department of Justice into a taxpayer funded civil litigation firm acting for the entertainment industry. The Bill almost got passed. It was opposed mainly by the EFF and the American Library Association.

Here's yesterday's press release.

For Immediate Release: Contact: Jennifer Hoelzer (Wyden): (202) 224-3789

September 24, 2008

Senate Drops Civil Enforcement Provisions from Intellectual Property Act

Washington, DC— The U.S. Senate Judiciary Committee today removed provisions from S.3325, the Prioritizing Resources and Organization for Intellectual Property Act of 2008, that would have involved federal prosecutors in civil copyright cases. The provision was removed at the request of U.S. Senator Ron Wyden (D-Ore) who released the following statement:

"I am happy to announce that after substantial discussions Chairman Leahy and the Senate Judiciary Committee have agreed to remove provisions from S.3325 that would have resulted in a massive gift of scarce federal resources to Hollywood and the recording industry. I regret that the legislation still includes provisions that overzealous federal prosecutors could misconstrue to allow the seizure of important components of our Internet infrastructure. I will work with Senator Leahy to clarify these provisions in the future.

"I congratulate the committee on their strong efforts to improve enforcement of our anti-counterfeiting laws and hope those efforts will aid federal efforts to protect American producers and American jobs.

"The removal of Title 1 from the original version of S.3325 eliminates a grant of federal power that was not asked for, or desired by the Justice Department. It would have had the effect of turning our federal law enforcement personnel into collections agents for industries that are more than able of taking care of themselves. The Justice Department has made clear that Title 1 would have resulted in the diversion of federal resources from important criminal actions into civil matters of questionable merit.

"Unleashing federal prosecutors on Internet communications and discourse would also have a chilling effect on both commercial activity and free expression. Both the individual desire to share ideas and creativity more broadly and the drive of business to expand their markets and reach new customers have been the engines behind the most dynamic and vital new industry in American history. This is why it is so important that unintended consequences not be allowed to tax, throttle, or otherwise inhibit those creative forces.

"With over 30,000 civil suits filed by a single entity against individual Americans it is clear that industry is more than able to enforce its intellectual property rights in civil courts without the contribution of taxpayer funds and busy federal prosecutors. I continue to urge the content industries to seek out distribution models that take into account, and profit from, the new technologies that have revolutionized the way Americans communicate, learn and share information.

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HK

RIAA Outdoes Itself

Just when you think that things cannot get much crazier in the USA, they just have.

The RIAA is now trying to sanction Ray Beckerman, a terrific lawyer in New York who has had the temerity to ably and courageously defend alleged file sharers, and to host and run an important, outstanding and richly informative blog and veritable database concerning RIAA's reign of terror litigation against some 30,000 children, dead grandmothers and perfectly ordinary folks in between.

Here's the Wired Story. Here's the motion memorandum, in which there are several references to Ray's "anti-recording industry blog."

It uses the word "vexatious" or "vexatiously" about twenty times. The RIAA must surely be shocked, shocked at the very thought that there could be "vexatious" tactics and proceedings in American courts.

And speaking of absurd, the lead lawyer on the front of the memorandum in support of the motion, which is dated September 12, 2008 is none other than Richard Gabriel, former lead litigator the RIAA and who was appointed to the Colorado Court of Appeals on July 1, 2008.

Curious, to say the least.

HK

RIAA v. Almost 30,000 People

Ray Beckerman is a redoubtable and remarkable New York lawyer who has made it his mission to stop the RIAA's mass litigation campaign, which has now victimized almost 30,000 ordinary people, ranging from a 12 year girl living in subsidized housing to a dead grandmother. He has published an excellent article in the ABA's The Judges’ Journal, Volume 47, Number 3, Summer 2008. This is a journal that is read by the American judiciary.

Of relevance to Canada, he points out at the outset that:

The courts of other countries—notably the Netherlands and Canada—are not clogged with these cases for the simple reason that they were quick to recognize the paucity of the RIAA’s evidence and refused to permit the identities of Internet subscribers to be disclosed to the record companies.

It was the leadership of CIPPIC, who I was proud to represent, and the principled opposition mostly by Shaw but also of Telus that led to the successful resistance at the outset to a similar campaign in Canada. Canada was fortunate to have had the PIPEDA privacy legislation in place and and a federal judiciary with the wisdom and the will to dispense justice in the BMG litigation at both the trial level and the appellate level.

One should be very skeptical about Canadian music industry claims that there is no intention to sue ordinary individuals in Canada. There was certainly a major effort by CRIA involving three prominent law firms to do so in 2004 - 2005 and there very likely will be renewed efforts at litigation against individuals for common place activity by CRIA and/or others if Bill C-61 is enacted as it now stands.

P.S. - Ray has posted an epilogue on some key developments since March, when the paper was essentially done.

HK

Unmaking of the "making available" right

Ten law professors have filed a brief in the American Thomas case supporting the argument that there is no "making available" right as such in the USA. In other words, without proof of actual downloading by someone other than the RIAA investigators, there should be no liability. Ms. Thomas was the single mother of two who has to pay $222,000 for downloading and "making available" nine songs, worth $9.91 on iTunes.

There is nothing in Bill C-61 to prevent such a travesty of justice in Canada. In fact, Bill C-61 could make the RIAA/CRIA dream of suing children and dead grandmothers even clearer and more viable in Canada than in the USA.

Full credit to the professors who took the time to do this. They are Annemarie Bridy, University of Idaho; Michael W. Carroll, Villanova University; Ralph D. Clifford, Southern New England School of Law; Thomas F. Cotter, University of Minnesota; Jon M. Garon, Hamline University; Stephen McJohn, Suffolk University; Tyler T. Ochoa, Santa Clara University; Niels B. Schaumann, William Mitchell College of Law; and Christopher Sprigman, University of Virginia.

And full credit to the trial judge for taking it upon himself to consider whether he had made a "manifest error" in his jury charge that it was unnecessary to prove actual distribution to a third party. Unfortunately, for whatever reason, Ms. Thomas' trial lawyer apparently did not deal with this issue at trial.

If the liability for "making available" falls through in the USA, it would be even more absurd for Canada to adopt the principle as set forth in Bill C-61. And make no mistake. There would be law suits in Canada - lots of them. The music industry can't wait to get going. They failed and fizzled four years ago - and I'm proud to have represented CIPPIC and to have played a key role in making that failure happen.

But Bill C-61 could be CRIA's sweet revenge.

Let us hope that the RIAA/CRIA approach to copyright law as expressed so clearly in Bill C-61 is clearly stopped at the Canadian/American border. Let Canada's children sleep well at night and let Canada's dead grandmothers rest in peace.

HK