Re: suit against RIAA - one to watch....

this morning, the judge dropped the punishment yet again, this time citing constitutional reasons, which means that : "If this case is pursued—and we suspect it will be—the trial phase will end and a federal Appeals Court will take over."

Ars wrote:Judge calls $1.5M file-sharing judgment "appalling," slashes to $54,000

Jammie Thomas-Rasset, the first US resident to have the file-sharing lawsuits against her go all the way to trial and verdict back in 2007, “lied in her trial testimony," said federal judge Michael Davis today. And her “past refusal to accept responsibility for her actions raises the need for strong deterrence.”

But that deterrence won't come courtesy of a jury, which last year found Thomas-Rasset liable for $1.5 million dollars—$62,500 for each song she was accused of sharing on the KaZaA peer-to-peer network. That case was her third time through a trial; the first two trials had ended with Thomas-Rasset on the hook for $222,000 and $1.92 million, respectively. In each case, Judge Thomas has altered or set aside the jury's verdict, and he did so again this morning.

Davis has found that the $1.5 million award was unconstitutional; he slashed it to $54,000—$2,250 per song. And even then, the amount was "a higher award than the Court might have chosen to impose in its sole discretion.”

Davis has done this before. After the second trial and its $1.92 million verdict, he also reduced the award to $54,000, but he elected not to do so on constitutional grounds. That decision led to Thomas-Rasset's third trial, but today's constitutionally based decision should end the matter at the District Court level. If this case is pursued—and we suspect it will be—the trial phase will end and a federal Appeals Court will take over.

Sections of the verdict are worth quoting in full; they illustrate Judge Davis' deep common sense about the case and provide a worthwhile framework for thinking about similar P2P cases.
The Court concludes that an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first-time willful, consumer infringer of limited means who committed illegal song file-sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.

This reduced award is punitive and substantial. It acts as a potent deterrent. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not for this Court to make. The Court has merely reduced the jury’s award to the maximum amount permitted under our Constitution.

Davis had nothing positive to say about Thomas-Rasset, who he faulted for lying and for denying responsibility by “casting possible blame on her children and ex-boyfriend.” As for her argument that she caused no harm to the music industry, Davis “rejects her suggestion" and calls for a penalty in order to enforce copyright law, compensate the record labels, and “deter future copyright infringement.”

But Davis was at his most Old Testament when blasting the huge damage awards handed down.
There is no doubt that a multimillion dollar penalty is overkill to deter a private individual from obtaining free songs online… Although Thomas-Rasset played a role in the web of online piracy, she played a minuscule role… It cannot be that she must pay the damages caused by millions of individuals because she was one of two users caught, sued, and subjected to a jury trial… [Joel Tenenbaum in Massachusetts was the other.] This award constitutes the maximum amount a jury could award, consistent with the due process clause.

His $2,250 per song figure is three times the minimum statutory damages of $750, though Davis does acknowledge the difficulty of drawing exact lines between fair and unfair judgments. “Any specific dollar amount will appear to be somewhat arbitrary,” he wrote. “Why is an award of $2,251 per song oppressive while an award of $2,250 is not?" The "3x" multiplier seemed to him a fair one, as such multipliers are routinely used to punish willful offenses (the same amount was chosen in the Tenenbaum case when the judge likewise gutted that verdict).

Thomas-Rasset has made clear to me at her trials that she can't and won't pay even a reduced $54,000 amount, and she has apparently rejected music industry settlement offers that would have her pay even less. Where we go from here is therefore anyone's guess—but continued court action looks likely.

(Sidenote for copyright wonks: Judge Davis declined to include in his injunction against Thomas-Rasset a clause that would bar her from "making available" the songs at issue here. "The Copyright Act does not provide a making-available right," he wrote.)

Re: suit against RIAA - one to watch....

NTP, the same company that sued RIM & got a 600 million settlement, filed suit against Palm yesterday in federal court, alleging patent infringement and seeking both injunctive relief i.e.: a sales shutdown and monetary damages i.e.: mad cash. The complaint again concerns e-mail delivery systems that use radio frequency communications.

Re: suit against RIAA - one to watch....

the JT case drags on with no injection of common sense....

MacWorld wrote:Judge refuses to set aside $675K fine in music piracy case

In the latest twist in a saga that has dragged on for seven years, a federal judge refused to set aside a $675,000 fine that a jury imposed on a former Boston University student for illegally downloading 30 songs.

In a 12-page ruling Thursday, Judge Rya Zobel of the U.S. District Court for the District of Massachusetts concluded that the jury came to the right decision and she denied Joel Tenenbaum’s motion to have the fine reduced both on common law grounds and on constitutional grounds.

“A damage award must stand unless it is “grossly excessive, inordinate, shocking to the conscience of the court, or so high that it would be a denial of justice to permit it to stand,” Zobel wrote, quoting from a ruling in a previous case.

The $675,000 award fits into none of these categories because Tenenbaum could have been hit with a much higher fine, Zobel noted. The copyright statutes under which Tenenbaum was sued provides for statutory fines of up to $150,000 per infringement. The jury’s award of $22,500 per infringement was at the low end of the range for willful infringement, she said.

“The jury’s damage award was not so excessive as to merit remittitur,” Zobel wrote. The fact that the award is well under the statutory maximum means the award is neither “wholly disproportional,” nor “obviously unreasonable” she said. “It does not offend due process,” she said in denying Tenenbaum’s claim that the fine is constitutionally excessive.

The ruling is sure to prompt another round of appeals from Tenenbaum who has been embroiled in a fight with the music industry since 2005, when he was first accused by six music labels of downloading and distributing hundreds of copyrighted songs using file-sharing networks.

The music companies ended up suing Tenenbaum over a representative sample of just 30 of the songs they alleged he pirated.

Re: suit against RIAA - one to watch....

This is definitely a case to watch. If this is legalized, it could inflict a massive hit for the record industry's current business model.
The Beeb wrote:A US court is to consider a case that could determine whether digital media files can be resold.

One-year-old start-up ReDigi is battling music giant EMI over whether digital music can be retraded after it has been legally purchased.

ReDigi says that its software is designed to comply with existing United States copyright laws.

But EMI argues a legal principle which allows consumers to resell purchased material goods does not apply.

A judge at the district court in Manhattan, New York, will hear opening arguments in the case on Friday after EMI sued ReDigi for copyright infringement earlier this year.
Legal precedent

Launched in October 2011, ReDigi bills itself as the first legal online marketplace for second-hand digital material.

The company says thousands of people downloaded its software in the weeks after launch, but it says growth slowed after Capitol Records, a subset of EMI, sued in January.

EMI argues that digital music is not the same as CDs or books, meaning that the "first sale doctrine" does not apply.

It says that the only way to move music around involves making duplicates, and there is is no way to guarantee all the original owner's copies of the files have been deleted.

The lawsuit will be closely watched by the wider media industry as it could set a precedent.

Search giant Google has written a letter to the judge arguing that the company had a "specific and vital interest" in the outcome.

"I think it could absolutely transform the industry," Benjamin Shiller, a professor in economics at Brandeis University, told the BBC.

US digital music sales are set to surpass CD and vinyl sales for the first time ever this year, according to research firm Strategy Analytics.

It estimates that digital sales will rise to $3.4bn (£2.1bn), compared to $3.38bn for physical sales.

"Most lawful users of music and books have hundreds of dollars of lawfully obtained things on their computers and right now the value of that is zero dollars," said ReDigi's chief executive John Ossenmacher.

"ReDigi takes zero dollars and we create billions of dollars in wealth overnight."

ReDigi asks users to download proprietary software, which verifies if a file was bought legally. If the song checks out, it is then erased from the seller's hard drive and uploaded to ReDigi's computer servers.

ReDigi's software is designed to prevent sellers from reinstalling a sold song to their computer, and offers users the chance to check their libraries for illegal music.

Mr Ossenmacher said that with all of the checks in place: "We were surprised by the lawsuit."
Disruptive model

EMI's lawyer Richard Mandel, declined to comment on the pending case.

In court documents the firm acknowledges that it had held discussions with ReDigi, but adds that it "certainly did not provide any approval of [its] concept".

EMI's suit demands ReDigi pay a penalty of $150,000 for each song in EMI's catalogue that was sold via the service since its launch.

It may seem like a large sum, but legal experts note that the financial impact of ReDigi's business model could be larger if it is judged to be legal.

"What this case points out is that the copyright statutes were written in an era when works of authorship were only available in tangible form," said Jonathan Handel, an entertainment attorney at TroyGould.

"The copyright statute looks at the world through a lens of atoms not bits."

Europe has already issued a ruling on a related case.

In July, a European Union court sided in favour of UsedSoft, a German company that resold Oracle software, arguing that "an author of a software cannot oppose the resale of his 'used' licences".

Regardless of the outcome of the US suit, Mr Ossenmacher insists that ReDigi will continue to exist, with or without the record labels' permission.

He has already announced plans to expand into the ebook market.

It could be a potentially lucrative step bearing in mind that digital books cost more than digital songs, and are likely to be resold sooner after purchase.

ReDigi offers its service as a modern-day equivalent of a used record store.

EMI says the analogy is inapplicable because "used record stores do not make copies to fill their shelves". Instead it alleges that the service is a clearinghouse for copyright infringement.

ReDigi says its service does not infringe copyright because it is protected by the fair use and first sale doctrines.

EMI says it owns the "exclusive rights" to manufacture, reproduce, distribute and sell digital versions of the copyrighted works of its artists. It notes that authorised services including Apple's iTunes and Amazon's MP3 store had to sign agreements with it.

iTunes's rules state that users must comply with "the applicable usage rules established by Apple and its licensors, and that any other use of the iTunes Products may constitute a copyright infringement".

ReDigi says that EMI's distribution rights are limited to material objects, and if digital files are judged to be material objects it can invoke the first sale doctrine which permits resales.

EMI says ReDigi also offer 30 second clips of songs which are stored in users' "memory banks" which it claims is another unauthorised copying act.

ReDigi says the songs are only loaded into a computer's RAM memory so that they "disappear" after the track has stopped playing.

EMI says that given the widespread piracy of sound recordings it is "questionable" where ReDigi can effectively determine if the files were obtained legally in the first place.

ReDigi says that the only eligible files are ones originally downloaded from iTunes and that it excludes tracks ripped from CDs or taken from other stores, allowing it to use software to validate ownership.

EMI notes that ReDigi has acknowledged that there is no way to ensure that users do not retain copies of the files they upload.

ReDigi says its software is designed to run "continuously" in the background to detect songs on any device attached to the user's computers at a later date. It says if they refuse to delete the files their ReDigi account is suspended.