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Overview of Content

The summaries of judicial opinions below serve as selected highlights arising from the Recording Industry Association of America's ("RIAA") and Motion Picture Association of America's ("MPAA") effort to litigate against consumers who have allegedly used peer to peer (P2P) file-sharing software to allegedly infringe copyrights owned by the RIAA and MPAA. The summaries have been organized first by jurisdiction (country, circuit, or district) and, in some cases, may be organized by cases (eg Gonzalez or Grokster) and/or holdings within the jurisdiction. This content will be updated periodocially. Please note that the interpretations and summaries presented herein represent only a perception and should not be relied upon as legal representation or legal argument.

For additional information, please visit the Electronic Frontier Foundation which also has a number of documents related to the various RIAA suits online.

Judicial Opinions and Related Authority

UNITED STATES

While there exists substantial blogging and posturing on individual efforts to fight back against the Recording Industry Association of America and the Motion Picture Association of America, there should be no question that the MPAA and RIAA continue to "win" victories in its litigation efforts. Consequently, one should not base any action upon what might occur or what someone else happens to be arguing in a different court.

Apart from the United States Supreme Court whose authority all federal courts must follow, a decision in one court (whether at the federal trial level - United States District Court - or the federal intermediate appellate level - United States Court of Appeals) does not dictate how a different court at the same level must rule. For example, a ruling before the United States District Court for the Northern District of Illinois does not dictate how the United States District Court for the Southern District of New York must rule. Rather, authority from one court only acts as persuasive authority to another court at the same level. At the same time, a ruling by the Seventh Circuit Court of Appeals serves as binding authority for its lower courts, but only persuasive authority for courts in other circuits.

Because the MPAA and RIAA have fought and continue to fight litigation on a number of fronts across the United States, caution should be exercised in relying upon what one court dictates as the law. That being said, one can be confident in the conclusion that most courts thus far, at trial or later upon appeal, find for the MPAA and RIAA. Therefore, "fighting" the RIAA in litigation continues to be with greater risk than settlement alternatives, however disdainful they may be.

With that knowledge, Law Offices of Charles Lee Mudd Jr. remains committed and willing to fight the RIAA should any client desire to adopt this approach. At the same time, we also remain committed to provide those who wish to settle with the representation they seek.

BMG Music, et al v. Gonzalez

9 December 2005 The Seventh Circuit for the United States Court of Appeals affirmed summary judgment against Cecilia Gonzalez in the amount of $22,500 (oral arguments and opinion available online). In Gonzalez, the Defendant admitted to downloaded at least some of the files at issue. The court based the judgment on the minimum statutory damage award of $750 per infringement. Although more than 1,000 files exist in her folder, the judgment focused on only 30 of these files. On appeal, Gonzalez' arguments failed to persuade the Seventh Circuit of her position. Indeed, the Court's opinion established primary liability for those who download files. Thus, liability may be sought by the RIAA or MPAA not simply for "making [the files] available for distribution" in a shared folder, but also where an individual has downloaded copyrighted files. The Court further cast doubt on the fair use argument that downloading files to "sample" or "preview" them before deciding to purchase would be premissible. Indeed, in the Gonzalez case, the Court rejected the defense.

MGM v. Grokster

27 June 2005 The Supreme Court ruled on the much discussed MGM v. Grokster appeal from the United States Court of Appeals, Ninth Circuit. The Supreme Court of the United States concluded that the District Court entered summary judgment in favor of Grokster in error. It therefore reversed the lower court's entry of summary judgment in favor of Grokster and remanded the case. The Court held that its prior decision in Sony (the Betamax case) did not preclude consideration of evidence demonstrating intent to induce or promote infringement. The Supreme Court concluded that the record clearly demonstrated the unlawful objective behind Grokster.

Will the decision in Grokster have an impact on the individual user of Grokster or other P2P software? Not Directly. It should demonstrate to individuals that Grokster does not represent a safe or "legal" product. Arguably, it also reinforces the proposition that P2P file-sharing remains illegal under the current copyright regime. Thus, while it may not affect one directly, the RIAA and MPAA may use the decision to reinforce their position that use of Grokster and P2P software like Grokster remains illegal. They will be sure to contend that the Supreme Court's decision removes much doubt as to the illegality of the software and the underlying activity. Thus, while they have little to know sympathy, there will likely be less tolerance for any claims of ignorance of the law.

For more information, the Electronic Frontier Foundation has a number of documents available here.

Motions to Quash

Effort to Quash Subpoenas Fails: United States District Court, Southern District of New York rules against motion to quash subpoenas, 04 CV 473 (DC).

D.C. Circuit Rules Subpoenas Not Proper Under DMCA in RIAA Initiative: The D.C. Circuit Court of Appeals has issued an opinion holding that subpoenas sent to ISPs (in this case Verizon) by the RIAA pursuant to the DMCA are not enforceable because § 512(h) of the DMCA "does not authorize the issuance of a subpoena to an ISP acting solely as a conduit for communications the content of which is determined by others." The D.C. Circuit did not address Verizon's larger constitutional arguments. Stay tuned for a more in depth summary. In the meantime, individuals who receive notice from their ISP regarding a subpoena from the RIAA should immediately contact their ISP, inform them they object to the subpoena and any release of their information, and cite the D.C. Circuit opinion. Thereafter, they should immediately contact legal counsel.

5 December 2005 Sharman Networks has theoretically shut down operations of its KaZaA website as to Australian users pursuant to a court order requiring, by December 5, 2005, that it either implement a filtering system by which unauthorized transfers of files can be blocked or "shut down" its operation. While existing users of KaZaA will not be affected (though the use of KaZaA to download or upload files without license arguably remains illegal and may subject users to infringement suits - particularly here in the United States), Sharman Networks arguably must preclude use by new Australian users.

The order entered against Sharman Networks stems activities occuring in February 2004 when the Australian recording industry raided Kazaa's Syndey, Australia offices. A law known as the "Anton Pillar" permits parties in civil copyright suits to obtain evidence from opposing parties (more information on the Anton Pillar law is available at www.freedomfight.ca). This information can apparently be obtained through raids of the opposing parties premises without prior notification.

This information later played a role in the suit brought by the RIAA against Sharman Networks, parent firm of the KaZaA file-sharing program. The suit resulted in a trial and judgment concluding that the users of KaZaA engaged in copyright infringement and a requirement that Sharman Networks modify the software. Sharman Networks has appealed the judgment against it which should be heard in February 2006.

Expectation of Privacy:

All parties in the dispute (members of the Canadian recording industry, on the one hand, and Canadian ISPs, on the other hand) agreed that "ISP account holders have an expectation of privacy that their identity will be kept private and confidential." The expectation arises from the contractual relationship with the ISPs and the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA). However, section 7(3)(c) of the PIPEDA permits the disclosure of personal information pursuant to a court order.

Holding:

The Court denied the Canadian recording industry's motion for expedited discovery. This ultimate decision came about because of a number of factors the court addressed. However, the two most significant aspects of the holding are

(1) That "[t]he mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution;" and,

(2) That the privacy interests outweighed the public interest concerns in favor of disclosure because the Plaintiffs delayed in proceeding to obtain the information (2-5 months), the unreliability of the information (as determined it seems from the ISPs affidavits) and "the serious possibility of an innocent account holder being identified.

Limitations of Holding:

I believe caution should be made before making too much of the Canadian opinion.

(1) While the Court appears to suggest that file-sharing may be legal, the holding can be construed to be much more limited than this broad interpretation. The Court followed by stating that "[b]efore it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying." Significantly, the Court next stated that "[n]o such evidence was presented by the plaintiffs in this case. They merely presented evidence that the alleged infringers made copies available on their shared drives." Thus, should evidence be provided to support what the Court determined to be necessary, the Court may rule differently.

(2) The Court specifically noted that the motion before the Court was not novel and that all other courts addressing the issue (the disclosure of documents indentifying a defendant previously identified by only an IP address) had determined that the interests in obtaining the identification outweighed the privacy interests. Thus, the Court's holding on the balance between privacy and copyright should be viewed very cautiously and narrowly.

Impact on United States:

(1) United States law may differ as to whether "placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service" constitutes distribution or infringement under United States copyright law. Only a United States court can determine this interpretation of United States copyright law (as opposed to common law copyright infringement). Moreover, if jurisdictions differ on this interpretation (as they have in other varying aspects of RIAA jurisprudence), there may not be consensus until either the Circuits or the Supreme Court resolves the potential inconsistent opinions.

(2) As persuasive authority, the Canadian holding certainly suggests limitations and deficiencies in the presentation of evidence by the recording industry.

(3) The Court also implicitly suggested that a different ruling may be obtained under the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT) , specifically Chapter II, Article 10. The Court did not address the WPPT further because Canada has not yet implemented the treaty. However, the United States has implemented the treaty as of May 20, 2002.

Interesting Notes:

I found it interesting that the Court took the time to express the limitations on the order that it would have issued had it found that the balancing factors weighed more heavily on the side of the recording industry. Importantly, this suggests that the Court foresaw the possibility of granting the motion under different circumstances. Interestingly, the Court provided a means by which only the online pseudonym would replace the IP address in the public portion of the pleadings. The Court stated that a confidential addendum would then match the pseudonyms with actual identities of the individuals. In any case involving the disclosure of identities, all of us who may challenge the disclosure should push for such a privacy approach in the alternative should the Court grant the Recording Industry's motion.

A more detailed analysis of the opinion is beyond the scope of this web page. Some people may differ in their interpretation of the opinion. Because this page has been established to provide individuals with information regarding the issues involved, I have taken a very cautious approach to the interpretation of this and other opinions. People should not take the Canadian opinion to suggest that file-sharing of copyrighted material is legal in the United States.

2004 The RIAA has filed suit against individuals in Denmark, Germany, Italy and other countries.