Monthly Archives: October 2014

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Iggy Pop: The Godfather Of Punk On Music Theft

On Oct. 13, 2014, James Osterberg a/k/a Iggy Pop, the godfather of punk rock and one of the original devout communist in the music scene gave a powerful speech as a part of the John Peel Lecture Series on BBC 6. The BBC 6 link is here.

In short, he rails against the oligarchy of music capitalism that has always exploited and stolen from artists. But he brings a new edge to the argument, namely that technology has given the power to exploit artists to almost everyone and created a culture of theft and moral decay.

But now, everybody’s a bootlegger, but not as cute, and there are people out there just stealing the stuff and saying don’t try to force me to pay. And that act of thieving will become a habit and that’s bad for everything.

 ***

So is the thieving that big a deal? Ethically, yes, and it destroys people because it’s a bad road you take….If I had to depend on what I actually get from sales I’d be tending bars between sets.

 – James Osterberg a/k/a Iggy Pop, BBC Music John Peel Lecture, Oct. 13, 2014.

The godfather has spoken.

 

Defendant Sanctioned For Discovery Tactics

There is a growing tendency of defendants in BitTorrent litigation to demand excessive discovery with the idea they can make cases too expensive for plaintiffs. It is a neat idea, but fails in practice for a number of reasons, not the least of which is you have to pay to play that kind of game. And some defendants are writing checks they can’t cash.

Some things parties need to remember include that a requesting party needs to pay reasonable costs for discovery. It might only be $0.25 per page, but if you ask for 100,000 pages just to force a rights holder to do all that work, at the end of the day there is going to be a $25,000 bill just for the paper.

Another point is that using BitTorrent to copy works is a willful infringement of rights. All the time and expense of producing those 100,000 pages will be added on to the award at the end, making it maybe another $25,000. And those defendants that think they can run up a bill and then have it discharged in bankruptcy may be in for a shock. In Sailor Music v. Walker, No. 14-6012, (8th Cir. 2014) the courts have found that when you willfully infringe you are “maliciously” denying the copyright holder of royalties and thus the infringement is not discharged in bankruptcy.

Back to the initial requests that needlessly drive up these costs, the courts are starting to nip these in the bud. In the case of Malibu Media, LLC v. Michael Harrison, (1:12-cv-01117, S.D. Ind.) the defendant was just ordered to pay $7,000.00 for making such requests.  And while a $7,000 bill half way through the case may be a bitter pill for a defendant, it is probably better than an extra $50,000 added on to what they would pay at the end.  And that case is not yet over.

 

Relevant Order: Malibu Media, LLC v. Michael Harrison, 1:12-cv-01117, Dkt. 262 (S.D. Ind., October 23, 2014)

Misguided BitTorrent Defenses / Illinois Misfire

A common refrain in many of the BitTorrent litigation cases is “an IP address is not a person.” And this is true. But this refrain is repeated so often that many believe it to be a defense to a claim of copyright infringement. This is false.

What a plaintiff needs in a copyright case is evidence. An IP address may not be a person, but when it is tied to a specific person it is evidence. Unlike a criminal case, a plaintiff does not need evidence “beyond a reasonable doubt” or even “clear and convincing evidence.” A claim for copyright infringement is tried on a “preponderance” of the evidence standard. This means the scales of justice, all things being weighed, tip one way or the other even ever so slightly. For people that might like to think of it in percentages, a preponderance is not 90%, 75% or even 51%, it is more like 50.000001%.

The problem with may defenses in BitTorrent litigation is that defendants, and often their counsel, defend cases like they were defending a criminal case. Defendants often raise arguments supporting a “reasonable doubt.” This is understandable as those accused are being accused of theft, and there are possible criminal repercussions. But this is not the standard for civil copyright infringement claims. A reasonable doubt defense might sound good on TV, and is proper when a defendant is facing jail, but it falls flat in the real world of civil litigation and copyright infringement claims.

One such misguided example can be found in the pending case of TCYK v. Does 1-121, 3:13-cv-3127, C.D. Ill.   In that case a defendant filed a motion to dismiss arguing an IP address alone is not enough and raising the claim that it is possible someone else used his Wi-Fi, that he had neighbors who might have downloaded the movie in question, that the plaintiffs were “copyright trolls,” and many of the other common stock “reasonable doubt” defenses.

This turned out to be a waste of time. The court made clear, “Plaintiff need not conclusively establish that Defendant Gordon was using the IP address” and the motion was summarily denied.

The defendant in question has now been ordered to answer the complaint against him by October 15, 2014.

Relevant documents:

TCYK v. Does 1-121, 3:13-cv-3127, Docket 38 – Motion to Dismiss

TCYK v. Does 1-121, 3:13-cv-3127, Docket 40 – Opposition

TCYK v. Does 1-121, 3:13-cv-3127, Docket 48 – Opinion and Order

Defendant’s Motion to Quash “Demonstrates A Lack of Understanding” of Basic Rules

No Traction With Empty Allegations In Northern District of Illinois

Following the growing trend of judges nationwide, District Judge John W. Darrah has summarily dismissed a defendant’s claims that a subpoena related to a complaint filed for copyright infringement via BitTorrent was part of a “fishing expedition,” a “bogus lawsuit,” and “troll case” for extortion that undermined the judicial process.

The court summarily rejected all of the arguments as hollow and made clear:

The information sought is particularly discoverable, as Plaintiff would “otherwise be unable to maintain . . . litigation, as it has no other way of identifying the defendants.” TCYK, LLC v. Does 1-87, at *2. Any argument that the subpoena should be quashed because the information will not identify infringing parties “demonstrates a lack of understanding of the basic scope of discovery under federal rules… Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” reFX Audio Software, Inc. v. Does 1-111, 13-cv-1795, 2013 WL 3867656 (N.D. Ill. July 23, 2013) (citing Fed.R.Civ.P. 26(b)(1)).

The outcome of this: Due to defendant’s (or their attorney’s) “lack of understanding” the costs and fees associated with this case went up. Defendants who willfully infringe as occurs with BitTorrent infringement, pay all costs and fees for both sides. As such a defendant is now likely going to have to pay not only for their own “lack of understanding,” but they will likely have to pay the costs and fees of the plaintiff as well.

Worth reading for an appreciation of exactly what is going on are the Motion to Quash (Docket 15), the Opposition (Docket 19) and the Memorandum Opinion and Order of the court (Docket 26.)

14-cv-1381 – Docket 15 : Motion to Quash

14-cv-1381 – Docket 19 : Opposition to Motion to Quash

14-cv-1381 – Docket 26 : Memorandum Opinion and Order