Liberty Media Hires New Jersey Attorney to File Copyright Infringement Suit Against A New York Swarm

From the docket sheet:

U.S. District Court

Southern District of New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:11-cv-04100-SAS
Liberty Media Holdings, LLC v. New York Members Of Swarm Of November 16, 2010 To January 31, 2011 Sharing Hash File AE340D0560129AFEE8D78CE07F2394C7B5BC9C05 et al
Assigned to: Judge Shira A. Scheindlin
Demand: $150,000
Cause: 17:101 Copyright Infringement
Date Filed: 06/15/2011
Jury Demand: None
Nature of Suit: 820 Copyright
Jurisdiction: Federal Question

Plaintiff
Liberty Media Holdings, LLC represented by Vincent S Verdiramo

Vincent Verdiramo
3163 John F. Kennedy Blvd.
Jersey City, NJ 07306
201-798-7082

LEAD ATTORNEY
ATTORNEY TO BE NOTICED


 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

SDCA: Perfect 10 v Rapidshare: Preliminary Injunction Denied Against Filesharer Despite Specfic Knowledge of Infringements

In Perfect 10 v. Rapidshare (SDCA 09 CV 2596) May 18, 2010, the District Court denied a preliminary injunction against filesharing service provider.

I visited the company's website and watched the video here.   It looks like a service that would be helpful in our law practice - we are dealing with transmittal of larger and larger files and always interested in bringing down the cost and making it faster.

I couldn't tell from watching the video on the Rapidshare homepage with the nice German accents or reading the decision exactly how the peer-to-peer filesharing (ie accessing someone else's copyrighted works) might work.

But the judge found facts radically different from those in the Limewire case, an example of a a filesharing service that appears to be a pretty good citizen and a plaintiff who seeks to put the burden of policing its content onto a neutral third party.


Perfect 10 v Rapid Share: Denial of Preliminary Injunction of Filesharer Despite Specific Knowledge of Infr...

Limewire: Some Stats From the Decision

In Arista Records LLC v. Lime Group LLC (SNDY KMW May 11, 2010) - article and a copy of the decision here Judge Kimba Wood found Lime Wire guilty of copyright infringement.  Basically, LimeWire did the same thing that Napster did, leaving an evidence trail similar to Napster's but using Grokster technology.  Remember the Supreme Court said that peer-to-peer filesharing was a technology capable of non-infringing uses.  

So just distributing the technology won't get you in trouble.  But using it to actively promote, facilitate and profit from infringement will, particularly where technological measures that would make it difficult or inconvenient to infringe could easily have been put in place.  An expert found that 98.8% of the uses of this peer-to-peer file sharing technology were infringing uses.  He found that 93 percent of the materials in LimeWire were highly likely to be copyright protected.  Over past years, the record companies filed over 6,000 lawsuits against LimeWire users.  They obtained 700 judgments and settled 4,000 cases.

LimeWire was launched in 2000.  By 2003 it had 2 million users per month.  At the time the suit was filed, LimeWire had 4 million users per day.

From 2004 - 2006 annual revenue grew from $6 million to about $20 million.  LimeWire's CEO has been held personally liable.

There will be a trial on a number of other issues raised.   A troubling allegation surfaced that an attorney from the Electronic Frontier Foundation gave some bad advice to LimeWire regarding a document retention policy.

The short answer is that pre-infringement evidence can be used to prove intent to infringe for those infringement claims brought within the statute of limitations.   So documents from ten years ago can show that you intended to promote infringement three years ago.

Some Misleading Headlines from Techie Buzz About Copyright Infringement and Zapshares

Source  http://techie-buzz.com/utilites/zapshares-protects-p2p-users-from-copyright-infringement.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+techiebuzz+%28Techie+buzz%29

SDNY Judge Whacks Limewire, Holds Founder Personally Liable

Opinion here courtesy WSJ Law blog, article here.

Illegal Downloading of Software: Czech Cracker Leeches Warez Gets 30

In U.S. v. Klimecek, 2009 WL 102128 (7th Cir. January 15, 2009), the Seventh Circuit upheld a 30-month sentence for a member of a warez group who downloaded Czech movies and music. The decision does not state that any of these works were registered with the Copyright Office. Italics below are from the decision:

He was indicted under 17 U.S.C. § 506(a)(2) and 18 U.S.C. § 2319(c)(1) for willfully infringing copyrights by reproducing or distributing during a 180-day period at least ten copies of one or more copyrighted works with a retail value of more than $2500. He was further charged under 17 U.S.C. § 506(a)(1) and 18 U.S.C. § 2319(b)(1) because the purpose of his infringement was for private financial gain.

Klimecek pleaded guilty. [Rec. Tab 9.] During the plea colloquy, he declared that he bought and installed hardware and software to set up a computer server and paid half of the monthly service charges to connect the server to the Internet. [Rec. Tabs 3-4.] In exchange, Klimecek was to obtain access to Czech movies and music. [Rec. Tab 6.] He admitted that he knew that Internet users from around the world were accessing the server to upload and download copyrighted works. [Rec. Tab 4.] The defendant also stated that during a 180-day period he caused at least ten or more copies of one or more copyrighted items to be uploaded to the server and thus made available for unauthorized download by Internet users. [Rec. Tab 5.] Klimecek admitted that the retail value of these copyrighted materials exceeded $2500. [Rec. Tabs 6-8.]

Even with the guilty plea, Klimecek got thirty months of prison under the Sentencing Guidelines. The court was not sympathetic to his arguments that he was a minor player and found that under the guidelines his conduct did not warrant a further downward departure.

The court also rejected the argument that the sentence was unreasonable. He had no criminal background, made next to no money on the scheme, and claimed he was not particularly sophisticated and thought he was just playing around with some friends.

Be very careful out there. Under the statute, a good chunk of the high-school and college population of the United States would probably qualify for some very hard time. Until the grandchildren of federal judges start getting hit with these sentences, they will continue to appear "reasonable" to the federal judiciary. Housing, feeding and guarding Klimecek for thirty months is an egregious waste of tax dollars and entirely disproportionate to the offense, which could largely be remedied (and give the copyright owners greater financial benefits) through painful but effective civil remedies or restitutionary penalties. Now that Klimecek will spend probably a couple of years in prison, there is little chance he'll be able to pay the level of restitution to the copyright owners that he would have been able to pay if he'd been permitted to work.

A suspended sentence conditioned on restitution would have been the economically prudent and just solution. Just because there is a stupid law on the books does not mean the prosecutor has to ask for a stupid sentence. Cf. Hugo, Victor, Les Miserables. And just because a law is on the books does not mean that the federal judiciary should abandon reason in favor of the Sentencing Guidelines.