As Expected, Team Prenda Trying Desperately To Get Out Of Appearing On Monday

from the well-of-course dept

All week I've been checking the docket on the Prenda case where the showdown is supposed to be happening on Monday, fulling expecting to see John Steele, Paul Duffy, Paul Hansmeier and others desperately trying to get out of appearing, and it's finally showed up -- but not via their own filing, but rather opposing attorney Morgan Pietz who received the documents before the court did, and is opposing them, in part by arguing that Team Prenda stalled in filing these documents. Team Prenda try a variety of arguments, first noting that they have nothing (nothing, I tell you!) to do with the case, and they point out that Brett Gibbs and the lawyers he hired are the lawyers on the case. They're even so bold to claim that they have "no dog in this fight."

Even where the court seeks to adjudicate issues between parties, it must have personal jurisdiction over them. Here, Steele, Hansmeier, Duffy, and Van Den Hemel are not parties and have not otherwise participated in this litigation. As such, the public policy behind the need to determine personal jurisdiction is arguably at an elevated level because, as individuals, they effectively have "no dog in this fight."

As if anyone believes that.

Then they claim lack of jurisdiction by the court:

On March 5, 2013, this court issued an order that eight individuals would have to appear before this court on March 11, 2013. But this court lacks jurisdiction to order those individuals to appear in that they reside outside California, are not parties to this litigation, have not appeared in this action, and do not represent parties to this action.

Moreover, although some of these individuals may have received notice as the court ordered, others did not because those charged with providing notice simply lacked the information necessary to do so. And, even those that were served have not received reasonable notice of the nature of the proceedings they are being ordered to appear in or what is expected of them besides their physical presence.

Further, they have not received a reasonable amount of notice to accommodate cross-country travel or information regarding who will pay for such travel. Based on these factors, the court should withdraw its order for John Steele, Paul Hansmeier, Paul Duffy, and Angela Van Den Hemel to appear on Monday, March 11, 2013 at 1:30 P.M.

On top of that, they argue that they "can be nothing more than witnesses."

Here, because they are not parties in this action, Steele, Hansmeier, Duffy, and Van Den Hemel can be nothing more than witnesses. California Code of Civil Procedure section 1989 provides that "a witness . . . is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness Is a resident within the state at the time of service." None of these individuals named in the court's March 5, 2013 reside in California... Thus, the court lacks jurisdiction to order them to appear.

Furthermore, they claim that even thought it seems quite likely that they heard about this order immediately after it came out on March 5th, that they didn't actually find out about it until yesterday, March 7th, which (they claim) is not enough notice.

Although counsel submitting this application has been unable to identify any authority addressing the notice requirements to witnesses ordered to appear at such hearings, logic dictates that such individuals should at least be similarly accommodated with reasonable notice. Here, the court's March 5, 2013 order that notice be provided by March 7, 2013 to attend a March 11, 2013 hearing with no further information is fundamentally unreasonable.

Oh yes, and they also say that they need to be paid to show up:

Finally, witnesses are entitled not only to receive payment for their attendance, but also for travel expenses.... But, the court's order not only fails to provide who will compensate Steele, Hansmeier, Duffy, and Van Den Hemel for their time and these expenses, but that they will be compensated at all. Given the considerable expense of traveling such distances (including consideration of the fact that one of the witnesses likely has limited means given her employment as a paralegal), especially on such short notice when many common carriers may not have seats available, this is a significant issue.

As is typical for Prenda, throwing any excuse at the wall to see what sticks.

Morgan Pietz has already filed a response noting the claims of the court not having jurisdiction are basically bullshit, since all of these guys have been involved in this and other Prenda cases in California. He lists out each and every person and notes their connection to California or this case in particular. I won't post them all, but here's the entry on Steele:

John Steele has frequently sent demand letters into the State of California, seeking to pressure Internet users into settling copyright infringement claims. An example of only one such letter (undersigned counsel knows there are many more) accompanies this opposition as Exhibit 1 to the Declaration of Nicholas Ranallo. Further, Mr. Steele has not been shy about conducting media interviews, with California publications, about his California cases. See http://www.sfgate.com/business/article/Lawsuit-says-grandma-illegallydownloaded-porn-2354720.php. Accordingly, both general and specific jurisdiction exists over John Steele.

For Paul Hansmeier, they note he already traveled to California for that deposition. Paul Duffy is a member of the California Barr, and has taken over some Prenda cases in California for Brett Gibbs. Oh yeah, and the paralegal Angela Van Den Hemel is accused of violating the court's discovery order in this very case, so the jurisdiction over her is even clearer.

Pietz also claims that the short timeframe argument is bogus too, and suggests that Prenda chose to file this attempt to get out manually in an attempt to delay the whole thing, and even notes the oddity that he got the documents before the court did:

It appears that the Application may have been manually filed in order to create a purposeful lag time (of the motion getting from the filing window to chambers) on what is supposed to otherwise be an emergency motion. It is unclear why undersigned counsel found himself in possession of a copy of the moving papers prior to the Court. Further, the original amount of time was reasonable.

And now... we see what Judge Otis Wright thinks about all of this...

Filed Under: angela van den hemel, brett gibbs, fees, john steele, jurisdiction, morgan pietz, paul duffy, paul hansmeier, prenda, prenda law
Companies: prenda, prenda law

GEMA Hikes Venue Performance Royalties 500%, Threatens Germany's Underground Club Scene

from the 'creative'-destruction dept

GEMA is killing the music industry. Despite needing artists to survive, GEMA seems particularly hellbent on destroying any venue these artists might use to make money in its quest to secure even more money. It takes a certain level of diabolical shortsightedness and greed to "elevate" yourself above the rest of the PROs into "Most Hated" status. Considering other PROs have done such endearing things as shakedown the Girl Scouts and non-profit charities for spare change, GEMA has its work cut out for it.

Maybe it's the famous German industriousness that has provided GEMA with the impetus to turn Youtube into a massive collection of "Sorry, this content is not available in your country" messages. Maybe it's some form of corporate sociopathy that has turned it into a self-destructive monster capable of destroying artists' futures in the name of artists' "rights."

The latest move by GEMA has sparked protests, a claim that most other PROs can't make. GEMA, in its infinite wisdom greed has decided that the underground music scene just isn't paying its fair share. The fix? Raise rates 1,400% and if a few clubs go under because of the hike, well, that's just part of the price of doing business.

GEMA, the organisation responsible for collecting mechanical copyright fees on behalf of some 65,000 artists in Germany, have announced a price hike which could spell the end for some of Berlin's most revered clubs. If the changes go unchallenged, the legendary Berghain - facing a fee hike of 1,400% - will shut after its NYE party this year; the similarly monolithic Watergate is likely to go the same way, claiming its mechanical copyright fees will be increased from €10,000 per year to €200,000.

As is par for the course in instances like these, it's all about "fairness" and "putting money in the pockets of artists." But like every other PRO, GEMA exists to collect fees and redistribute them to the artists, starting at the top. Those most heavily represented by chart success, airplay and radio exposure get the largest chunk, with little to nothing reaching those artists operating outside the mainstream (like, say, THE UNDERGROUND), many of whom may not even be registered with GEMA.

Ostensibly, GEMA is attempting to streamline its fee structure, but doing so in such a way that the most direct beneficiary is GEMA itself. On top of that, an additional levy targets underground clubs, and their lengthy events, nearly exclusively:

In the new scheme, commencing 1st January 2013, the complex existing system of eleven different fee structures is being replaced with just two: monthly charges will be calculated as a percentage of ticket price and relative to the size of the venue. There will, however, be a 50% surcharge if events last longer than five hours, and a similar increase after another three hours. Der Spiegel calculates that, "for an average Berlin club with 410 square meters of space, charging €8 entrance and running two events per week from 10 p.m. until 5. a.m, the price paid to GEMA will rise from the current €14,500 to some €95,000 - an increase of 560%". It seems evident that these plans favour venues (such as bars and gig spaces) with shorter opening times, placing a disproportionate financial burden on clubs. Legendary spots like the Berghain, renowned for the kind of marathon all-weekend sessions largely prohibited in the UK due to stricter licensing, will fare the worst.

GEMA has it all figured out, though. You can nearly hear the condescending smirk wrapped around this statement by Regional Manager Lorenz Schmid.

"The way I see it, [clubs have] been paying far too little in the past. I see no problem for a club manager if he has to pay €1.20 out of €12".

Of course you think it's manageable. You're the one collecting the fees. When you're on that end, it all seems like a drop in the bucket. Those on the other side see it differently. It's another unexpected cost to factor in, and when you're running a club that caters to the underground, you don't really enjoy the sort of profit margins that more mainstream events and entities do. GEMA is killing off some of the few outlets for underground artists in order to further reward the top of the heap. Makes sense. Fortunately, the underground scene isn't taking this lying down.

The Berlin community isn't taking the change lying down: on 25th June, 5,000 gathered to protest outside GEMA's summer party; on the 30th, more than 2,000 clubs across the country stopped the music for five minutes to raise awareness of the new fees... High profile artists including Alec Empire, Blawan, The Black Dog, Mike Paradinas and Steffi have spoken out against GEMA's plans. The German patent office are apparently investigating the legality of the scheme, but they won't reach a decision before the fees come into effect - which may be too late for many of Berlin's clubs.

There is also an online petition, which you can sign here. Given the historical importance of Germany's underground club scene, as well as its contribution to Germany's tourist industry (more than 35% of visitors cite the city's nightlife as a major reason for their visit, according to the Guardian), it would be incredibly disappointing to see it killed off by a rent-seeking agency looking to further reward the top 5% of artists. Maybe this backlash will highlight the stupidity of destroying outlets for artists in the name of "protecting" artists.

 

Filed Under: collection society, copyright, fees, gema, germany, rates
Companies: gema

UPDATE: Brazilian Performance Rights Agency Demands Blogger Pay $204 A Month To Embed Videos

from the you-can-only-take-my-money-for-so-long-before-you-take-it-all dept

Well, you can never say that performance rights organizations are unwilling to explore every option when attempting to snag a bit more income, ostensibly for their roster artists. American PROs (ASCAP, BMI, etc.) have attempted to collect from Girl Scouts, every cell phone owner with a ringtone and argued that a single person listening to their own music via the cloud is a "public performance." British PROs (PRS, mainly) have levied fees against pretty much any small business that has the audacity to play radios at an audible volume, as well as succeeding in collecting fees for "public performances" from hotels/motels who provide in-room radios for their guests. SABAM, Belgium's PRO arm, has managed to out-thug the rest of the world's PROs, demanding fees from truck drivers for listening to the radio in their cabs ("workplace") as well as collecting for bands that don't even exist.

There's a lot of competition out there in the dog-eat-dog world of performance rights double and triple-dipping, but it appears that Brazil's PRO, ECAD (Central Office of Collection and Distribution) is ready to play in the big leagues. Its strategy? Collect royalties from bloggers who embed videos. (As you may recall, ASCAP tried this a few years back to no avail, but Brazil's relationship with copyright could safely be described as "incomprehensibly inconsistent.")

(The following quotes come from a translated page, so they have been copied verbatim.) [UPDATE: Eduardo, the author of the original post, has sent over a better translation of the quotations.)

The saga of unusual collections of the Central Office of Collection and Distribution (ECAD) has added another chapter last week. The boys from the blog Caligraffiti received last Tuesday in an email warning that the collecting society would have to pay royalties for videos from YouTube and Vimeo that appeared on the site.

The saga of unusual collections from the Central Office of Collection and Distribution (ECAD) gained another chapter last week. The boys from the blog Caligraffiti received last Tuesday an email from the collecting society warning that they would have to pay royalties for videos from YouTube and Vimeo embedded on the site.

This is surprising. ECAD already collects performance royalties from Youtube Brasil for its artists. In fact, it collects quite a bit from Youtube.

YouTube Brasil will have to pay 2.5% of its gross revenue per exhibition of songs protected by Ecad (Bureau of Revenue Distribution) in the country. If the amount of the stipulated percentage does not reach BRL 258,000 (US $146,250) in a year, the site must pay the value as "minimum annual fee".

Not only does Youtube Brasil pay a minimum mandatory fee yearly but ECAD has also hit the site with a BRL 645,000 (US $366,000) "subscription fee." The PRO collected roughly BRL 510,000 (US $289,000) in 2011. With Youtube already on the hook for the performance royalties, how does ECAD arrive at the conclusion that embedded video (just a link back to Youtube for all intents and purposes) should subject bloggers to performance royalty payments?

Well, according to ECAD, Youtube is the "transmitter" and of course, has to pay. But blogs embedding videos are "relays" and are also subject to these fees. Basically, ECAD has found a loophole in the existing law and is looking to exploit it. ECAD's spokesman:

[UPDATE: Translation via Eduardo, along with this splendid note -- "This second one has a very bad wording in portuguese as well, written by lawyers in their own language."]:

The right of public performance in digital mode is through the concept of transmission exists in law and in this art. 5 of section II of Law 9.610/98, which issue is the transmission or dissemination of sounds or sounds and images through of radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process, so this includes the Internet.

The rights of public performance in digital media happen through the concept of transmission found in the article 5, section II of the law 9.610/98, in wich transmission or emission are the diffusion of sounds or images through radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process, so this includes the Internet.

ECAD also argues that the "transmitter" and the "relay" are completely different forms of use and as such, do not represent "double recovery." This is, roughly translated, complete horseshit. But it gets even worse. Bloggers are being charged a flat-rate based on a designation that ECAD itself decides. The cheapest option, most likely, is to be declared a "non-profit." But even that designation saddles the blog with crippling fees.

To blog [as] a nonprofit, the amount charged by Ecad is nothing lightweight: R $ 352.59 (US $204) monthly.

Caligraffiti is a niche blog dedicated to design and technology, with a hit count of 1,000-1,500 hits per day and is not profitable. Every contributor does something other than blogging for income. Despite this, ECAD has designated the blog as a "webcasting or broadcasting program originating from the internet," a category that is sure to increase the amount levied against it.

In response to this collection attempt, Caligraffiti was briefly taken offline. After some legal consultation, the bloggers decided to re-open and fight ECAD head on, stating that this is clearly an attack on the internet itself, which was built on open sharing and dissemination of information.

ECAD is also sticking to its guns, stating that although it has no collection arm "dedicated" to collecting from bloggers, anyone who "publicly performs music" (read: "embeds video") on their site is subject to these fees. Of course, ECAD isn't doubling up on royalties just to be greedy. Its focus is on "the awareness and enlightenment on the need for payment copyright," without which its covered artists would be "disrespected" by callous bloggers and their embedding code.

 

Eduardo has also confirmed that ECAD has gone after weddings with DJs for performance royalties (as Ninja pointed out in the comments) and pointed out that the BRL $359 amounts to roughly half a month's wages at minimum wage.

Filed Under: brazil, embedding, fees, licenses, videos, youtube
Companies: ecad, google, youtube

DailyDirt: On The Way, The Paper Bag Was On My Knee...

from the urls-we-dig-up dept

There doesn't seem to be a "Black Friday" for getting good deals on booking flights. Maybe there is a single day of the year to buy really discounted plane tickets -- if you know what day that is, please let everyone know in the comments. But technically, it probably takes more than a single day of ticket sales for the airline industry to get into the black for the year. In any case, here are some more stories about airlines and how they treat their customers.

• Spirit Airlines tweeted about a $9 ticket deal, but neglected to mention the fees and taxes -- resulting in a $50,000 fine for the airline. Beware what you tweet, airline marketing folks. [url]
• A guy from Chicago is suing Southwest Airlines for canceling his free drink coupons before he got to use them. He says Southwest owes him 45 free alcoholic drinks, and he's looking for other flyers who didn't get their free drinks to join him in a class action suit. [url]
• David Phillips will always be remembered by bargain hunters for turning about $3,000 worth of pudding into 1.2 million frequent flier miles. For every 10 UPC codes he collected, he earned 500-1,000 miles on American Airlines. [url]
• Virgin America CEO David Cush tells it like it is when asked about who came up with a good idea. "This was designed before my time but as I tell people, as time goes on and memories fade it will become my idea." [url]
• To discover more interesting business-related content, check out what the deal is on StumbleUpon. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Filed Under: airlines, fees, fines, flights, frequent flier miles
Companies: american airlines, southwest airlines, spirit airlines, virgin america

Massive Hike In Fees For Venues Playing Music In The UK

from the this-won't-help dept

We've seen this time and time again. The various music collection societies around the globe have been trying to squeeze out more and more cash -- either by extending what counts as a "public performance" or by massively jacking up the rates on existing licensees. We saw this recently in Australia, where rates went up by ridiculous amounts. To a lesser extent, we've seen something similar in Canada with its 1,300% fee increase. And, now, something similar is coming to the UK, where PPL massively increased a bunch of its fees:

Bills for a typical ­wedding bash will soar from £30 to £380. Pubs which can now pay as little as £8 a night will have to fork out around £10,000 a year up front for a public ­performance licence.

The fee for nightclubs will zoom from £167 to a mind-boggling £6,667 for each event.

If you're playing along at home, that last case describes a fee increase of 3,900%.

Now, for the most part, such collectives are passing money on directly to musicians, and not to record labels or the like. So you could argue that this means that musicians make more money, so perhaps it's okay. But that's not taking into account the overall impact of such fee increases. They actually harm musicians in multiple ways. First, as you would expect with such a massive increase in fees, many venues simply stop agreeing to pay a license to play music. Many may just not play music at all any more, and what good does that do any musician? Fewer venues playing music isn't helping anyone. It also means that a lot more of these kinds of venues end up going out of business. We keep hearing stories of people complaining about fewer venues being around for music these days, and you can blame ridiculous price hikes like this one for that.

Filed Under: fees, music, performance, uk
Companies: ppl

Federal Courts Making It More Expensive To Access Records, Even As They're Swimming In Cash

from the the-public-domain-is-expensive dept

The Federal Court's PACER system is really quite misguided. It's the system that the federal courts use to distribute judicial records (court filings, rulings, etc.), but rather than making that info available to the public, it's basically locked up behind a paywall, and it costs people 8 cents per page to download documents. Well, it did cost 8 cents per page. They've just announced that they're jacking up the fees to 10 cents per page, and that can add up pretty quickly when accessing a lot of court documents or some rather long filings or rulings.

While Harlan Yu and Tim Lee helped create RECAP to free up court documents, and that has helped make some of this material more widely available, it's still limited. And, in fact, some courts have expressed concerns about RECAP and told lawyers not to use it. And even though the official policy of the US courts is that they're fine with RECAP, it appears not everyone in the court system agrees. EFF lawyer Michael Barclay recently alerted me to the fact that the PACER system for the Western District of NY has a warning on its query page about RECAP, saying:

The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or .plug-in. called RECAP, which was designed by a group from Princeton University to enable the sharing of court documents on the Internet.

Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. RECAP captures District and Bankruptcy Court documents, but has not yet incorporated Appellate Court functionality. At this time, RECAP does not appear to provide users with access to restricted or sealed documents. Please be aware that RECAP is "open-source" software, which can be freely obtained by anyone with Internet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security practices to ensure that documents are not inadvertently shared or compromised.

The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.

Of course, with this price hike, one wonders if the courts are really concerned about "security" or if they're concerned about losing out on a big chunk of cash that comes into the courts thanks to PACER. Apparently, that cash is being used for all sorts of things, way outside of what's allowed. The law that authorizes PACER to charge, makes it clear that it can only charge "reasonable fees" and then only to the extent necessary to fund the working of the system:

The Judicial Conference may, only to the extent necessary, prescribe reasonable fees, pursuant to sections 1913, 1914, 1926, 1930, and 1932 of title 28, United States Code, for collection by the courts under those sections for access to information available through automatic data processing equipment.

And yet, reports have shown that PACER already collects a lot more money than is needed to run the system. And this price hike will only increase that. And while some of that money is going to fund additional technology in the courtroom, it's not clear that this is a legal or even best use of funds.

One example is a courtroom renovation one judge described at a 2010 conference. He said that as a result of PACER fees, "every juror has their own flatscreen monitors," and there are also monitors for members of the public to see. His courtroom also got the latest audio technology. "We just put in new audio so that people—I'd never heard of this before—but it actually embeds the speakers inside of the benches in the back of the courtroom and inside counsel tables so that the wood benches actually perform as amplifiers," the judge said.

Not that we're against better technology in court, but it's not clear this is the best use of funds, when collecting less money but making the information more widely available might better serve the public interest.

And, really, you have to wonder why the court system needs PACER in the first place. In this age of easy and free delivery of information, why can't the courts release that content for free, and charge people just for paper printouts? And, as Tim Lee's article points out, there seem to be much better ways to handle such a distribution of content:

For example, there isn't just one PACER website for the whole country. Instead, there are actually around 200 separate PACER websites, each serving a different judicial district. Consolidating those 200 servers into a single website hosted from a modern data center would improve the user experience and dramatically reduce IT costs.

Indeed, Yu argued that the very concept of charging for copies of public records is misguided. He suggested that instead of jacking up fees in order to fund the development of a more elaborate PACER site, the courts should publish their raw data and allow private parties, from Google to the Internet Archive, to build websites using that data.

"Congress needs to consider funding PACER out of general appropriations," Yu told Ars. "It's really shutting people out from being able to learn the laws that they need to abide by in our society." Of course, if PACER were run in a cost-effective matter, and without a paywall, it would cost a lot less than $100 million.

Filed Under: federal courts, fees, pacer, public access

AT&T Takes A Lesson From Banks: Will Now Charge You For Not Using Enough Long Distance

from the a-sign-of-things-to-come dept

Sometimes you wonder if there's some sort of competition between airlines, banks and telcos as to who can come up with the more ridiculous "fees" to add. AT&T, which last we checked, was still trying to get a merger approved that it claims will benefit customers, has now decided to add a $2/month fee for people who don't have a long-distance plan. In other words, pay more, for less! This comes on top of a whole series of other ways to limit consumer choice while increasing what they have to pay. As Broadband Reports notes:

AT&T imposed new usage caps on broadband users without making sure the meters work. They followed that up by cracking down on unofficial tetherers (imposing a fee for doing nothing while crippling smartphones) and then substantially jacking up the price of SMS service by killing off one of their most popular SMS plans.

But have no fear, once AT&T gets T-Mobile and there's even less competition in the mobile space, we're sure that such practices will only... er... increase.

Filed Under: fees, long distance, telcos
Companies: at&t, t-mobile

End Result Of HADOPI? Higher ISP Fees

from the but-is-anyone-buying-more? dept

It's not like people didn't warn everyone what would happen with various three strikes laws. The costs for ISPs were widely discussed, even if the recording industry lobbyists insisted they were overblown. Yet, here we are, a few months into France's HADOPI implementation of three strikes, and French ISPs are already warning users that they need to jack up fees to pay for compliance with HADOPI. And, of course, no one has provided any evidence that kicking people off the internet for file sharing makes anyone any more likely to buy. So, now, not only are people less inclined to buy just in general, but they have less money, because they have to pay more to their ISP. How's that going to save the recording industry's old business again?

Filed Under: copyright, fees, france, hadopi, isps