Bopaboo.
A new digital music service is getting lots of attention for proposing to help consumers sell their used MP3s in much the same way people once unloaded second-hand albums.
Bopaboo has generated splashy headlines recently for coming up with what on the surface seems like a good idea. Music fans have always exercised their first-sale rights, which under copyright law, allows them to sell their unwanted CDs, tapes, and albums without permission from the copyright owner. Why can't they do the same with digital music?
Cnet article.
December 24, 2008
End of RIAA Litigation for Online File-Sharing?
"The recording industry plans to lay down its litigation offensive against music pirates in favor of a more PR-friendly, if not more effective, strategy. Instead of suing thousands of people for stealing tunes via the Internet, it will rely on the cooperation of Internet-service providers"
Article from the Wall Street Journal.
Article from the Wall Street Journal.
Use of Name On Compilation Album
From the Trademark Blog
Use of Artist's Name On Cover Of Compilation Album
DJ David Guetta sues re use of his name in connection with compilation album
Use of Artist's Name On Cover Of Compilation Album
DJ David Guetta sues re use of his name in connection with compilation album
December 5, 2008
Improper Joinder of Does in RIAA/P2P Litigation
Arista Records, LLC v. Does 1-11, No. 07-CV-02828, 2008 BL 253292 (N.D. Ohio Nov. 3, 2008).
Summary: Northern District of Ohio Finds Record Companies Improperly Joined Doe Defendants in Peer-to-Peer File Sharing Case
Diverging in opinion from its Southern District counterpart, the U.S. District Court for the Northern District of Ohio held that the Doe defendants in a music industry file sharing case
were improperly joined. The court reasoned that despite arguments and holdings to the contrary, addressing the issue of joinder was both legally and practically appropriate prior to
the identification of the Doe defendants, and that efficiency concerns should not supersede the requirements of the Federal Rules of Civil Procedure. Thus, the court converted defendant Doe 9’s motion to dismiss for improper joinder into a motion for severance and severed all of
Doe defendants, save Doe #1, from the current action.
Bloomberg law report.
Summary: Northern District of Ohio Finds Record Companies Improperly Joined Doe Defendants in Peer-to-Peer File Sharing Case
Diverging in opinion from its Southern District counterpart, the U.S. District Court for the Northern District of Ohio held that the Doe defendants in a music industry file sharing case
were improperly joined. The court reasoned that despite arguments and holdings to the contrary, addressing the issue of joinder was both legally and practically appropriate prior to
the identification of the Doe defendants, and that efficiency concerns should not supersede the requirements of the Federal Rules of Civil Procedure. Thus, the court converted defendant Doe 9’s motion to dismiss for improper joinder into a motion for severance and severed all of
Doe defendants, save Doe #1, from the current action.
Bloomberg law report.
Statutory Damages Should Relate to Actual Damages
Yurman Studio, Inc. v. Castaneda, 07 Civ. 1241 (SAS)(S.D.N.Y. November 19, 2008), District Judge Shira A. Scheindlin reminds us of the well settled principle that "At the end of the day, 'statutory damages should bear some relation to actual damages suffered' [citing RSO Records v. Peri, 596 F.Supp. 849,862 (SDNY 1984); New Line Cinema Corp. v. Russ Berrie & Co., 161 F.Supp.2d 293,303 (SDNY 2001); 4 Nimmer Sec. 14.04[E][1] at 14-90(2005)] and 'cannot be divorced entirely from economic reality'"
Post from Recording Industry vs. The People
Post from Recording Industry vs. The People
Arista v Usenet.com - Chock full of Fed R Civ P
United States District Court (SDNY) Judge Baer's recent decision in Arista Records LLC v. Usenet.Com Inc., No. 07 Civ. 8822, 12/05/08 NYLJ "Decision of Interest" (S.D.N.Y. Nov. 24, 2008) is chock full of federal civil procedure issues. The decision, which granted plaintiff's motion to dismiss or strike Usenet's counterclaims for declaratory judgment, addressed the following issues:
Rule 12(f) - striking redundant pleadings
Rule 8(c)(2) - mistakenly labeling a defense a counterclaim
Rule 12(b)(6) - failure to state a claim
Rule 12(b)(1) - jurisdiction
Rule 41(a) - once answer filed, court has discretion to determine the proper terms of dismissal and whether it is with prejudice (concerning defendant's fear that if plaintiffs were to voluntarily dismiss their complaint, Usenet would be threatened with future litigation by plaintiffs)
The crux of the decision concerns counterclaims. The Court held that counterclaims are viable only when they present an independent case or controversy; counterclaims will be dismissed if they are merely a "mirror image" of the complaint. Therefore, because Usenet's DMCA safe-harbor counterclaims could not stand on their own without the complaint (i.e., the DMCA does not create an affirmative cause of action, but rather a defense), then they were dismissed. Moreover, the court noted, the counterclaims were not factually distinguishable because Usenet had not made any independent factual allegations. (The Court similarly dismissed Usenet's counterclaim seeking a declaratory judgment that its activities do not constitute inducement of copyright infringement, contributory infringement, or vicarious copyright infringement: this counterclaim, too, was a mirror image of plaintiff's copyright infringement claim.)
Lastly, the Court found that Usenet's argument that it would be precluded from recovering costs and attorneys' fees if its counterclaims are were dismissed was without merit. Pursuant to Section 505 of the Copyright Act, the Court would have discretion to award costs and attorneys' fees, irrespective of any counterclaims, if Plaintiff's claims were ultimately to fail.
Rule 12(f) - striking redundant pleadings
Rule 8(c)(2) - mistakenly labeling a defense a counterclaim
Rule 12(b)(6) - failure to state a claim
Rule 12(b)(1) - jurisdiction
Rule 41(a) - once answer filed, court has discretion to determine the proper terms of dismissal and whether it is with prejudice (concerning defendant's fear that if plaintiffs were to voluntarily dismiss their complaint, Usenet would be threatened with future litigation by plaintiffs)
The crux of the decision concerns counterclaims. The Court held that counterclaims are viable only when they present an independent case or controversy; counterclaims will be dismissed if they are merely a "mirror image" of the complaint. Therefore, because Usenet's DMCA safe-harbor counterclaims could not stand on their own without the complaint (i.e., the DMCA does not create an affirmative cause of action, but rather a defense), then they were dismissed. Moreover, the court noted, the counterclaims were not factually distinguishable because Usenet had not made any independent factual allegations. (The Court similarly dismissed Usenet's counterclaim seeking a declaratory judgment that its activities do not constitute inducement of copyright infringement, contributory infringement, or vicarious copyright infringement: this counterclaim, too, was a mirror image of plaintiff's copyright infringement claim.)
Lastly, the Court found that Usenet's argument that it would be precluded from recovering costs and attorneys' fees if its counterclaims are were dismissed was without merit. Pursuant to Section 505 of the Copyright Act, the Court would have discretion to award costs and attorneys' fees, irrespective of any counterclaims, if Plaintiff's claims were ultimately to fail.
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