Righthaven Actually Shows Up In Court, Whines About 'Scorched Earth' Attacks Against It

from the can-we-define-irony? dept

Righthaven became famous for being one of the first copyright holders to go after alleged online infringement... by suing first, without ever sending any sort of takedown notice. That, alone, raised some questions about Righthaven's tactics. The company also -- for no clear reason -- demanded not just payment, but also that sites turn over their own domain names. It was this level of intimidation (via the legal system) that caused many sites to simply settle, rather than pay to fight it. If ever there was a company guilty of using overly aggressive litigation techniques, it would be Righthaven. And yet... in a rather ironic move, the company is now complaining about the tactics used against it by lawyer Marc Randazza, who has been relentless in pursuing the attorney's fees that the court has ordered Righthaven to pay.

Though, yes, this does mean that Righthaven's lawyer, Shawn Mangano, actually showed up in court this time. Righthaven also complained that Randazza's efforts were just to get press attention (well, if Righthaven isn't going to pay them, they might as well get publicity some way...). Either way, the judge issued a protective order blocking anyone from revealing the financial information uncovered during a debtor's examination of Righthaven CEO Steve Gibson and his wife.

Separately, an appeals court rejected Righthaven's attempt to get an injunction to stop Righthaven assets from being auctioned off... It seems like another bad day for those supporting Righthaven.

Filed Under: appeal, marc randazza, scorched earth, shawn mangano, steve gibson
Companies: righthaven

Appeals Court Reject's Tenenbaum's Request To Rehear Arguments For Rejecting $675,000 Award For File Sharing

from the no-surprise dept

This one is hardly a surprise. We've been arguing for a while now that the choices by Joel Tenenbaum and his lawyers in his file sharing case haven't made much sense. They've been arguing the case in a manner that basically begs the court to go against them. I really don't understand the legal strategy here at all. Back in September, you may recall, the appeals court reinstated the $675,000 award against him for file sharing 30 songs. That had been the original jury award, that had been unilaterally reduced by the judge in the district court. However, the appeals court noted that the judge basically used the wrong procedure to do this, and had to first give Sony Music the option to redo the case. In other words, the entire issue at this point was a procedural issue. Thus, I can't fathom why Tenenbaum and his legal team again tried to argue on the merits at this stage. It's not the right time for that argument... but they still went ahead and asked to rehear the issue with the full slate of judges on the appeals court. That request has been rejected, as pretty much everyone expected. Even worse, it sounds like Tenenbaum's didn't just not focus on the procedural issue at hand, but also sought to talk about larger issues, like how statutory rates were a way to go after a "generation of kids." Whether or not we agree with that general sentiment, there's a time and place to bring that up... and this wasn't it. What's really dumb here is that this seems to undermine whatever small chance he might have had if the case was argued in good faith.

Filed Under: appeal, copyright, damages, joel tenenbaum

Appeals Court Reinstates $675,000 Jury Award Against Joel Tenenbaum On Procedural Grounds

from the too-bad dept

Back in April, we went through the entire appeals court hearing concerning the appeal of Judge Nancy Gertner's reduction of the jury award in the Joel Tenenbaum case as "constitutionally excessive." The jury had awarded $675,000 or $22,500 per song. Gertner reduced it to $67,500, or $2,250, and argued that the higher rate was just ridiculous. Unlike Judge Michael Davis, who did something similar in the Jammie Thomas case, Gertner did not use the "remittitur" process.

As happens often enough in such things, almost nothing that was heard during the oral hearings really mattered in the decision. The question of due process and remittitur didn't even make it into the hearing -- or if it did, it was a very minor part that didn't make an impact. And yet, that issue was central to the court reinstating the original $675,000 award.

The key points here are really procedural. The court notes that Gertner jumped to the constitutional question, which judges are supposed to avoid if they can. The court also suggests that Gertner should have used the remittitur process, like Judge Davis, allowing the record labels to (as they would have) reject the lower amount and redo the trial. Of course, as we've seen in the Jammie Thomas situation, that seems to lead to a series of wasteful cases.

To summarize: the court here basically avoided the big questions and sent the ruling back, and reinstating the jury award because Judge Gertner jumped the gun, and went straight to the Constitutional questions, when there were still other steps in the process that needed to be taken. This seems disappointing and wasteful in terms of resources, but such are the rules.

Separately, the court, as pretty much everyone not named Tenenbaum or Nesson suspected, didn't give any weight at all to Tenenbaum's separate appeal arguing that the Copyright Act itself was unconstitutional. These arguments were never going to persuade the court, and seemed more like (wasteful) academic exercises all along. In particular, the court eviscerates the idea that mere "consumers" should be treated differently by copyright law than those who are doing more than consuming. It notes that such a distinction is not mentioned by Congress anywhere, and if it wanted to amend copyright law to fix that, it's had plenty of time.

So, for the most part, this ruling is procedural... though it does go out of its way to note that "this case raises concerns about application of the Copyright Act which Congress may wish to examine." Of course, by now we know that if Congress opened up the Copyright Act to tinker, the end result would almost certainly be worse.

Either way, I'm assuming this case is far from over, and Tenenbaum, Nesson and some other Harvard Law students will keep banging the drum -- though, to date, it hasn't been all that successful. This is definitely a disappointing ruling, but hardly a surprising one.

Filed Under: appeal, copyright, damages, joel tenenbaum

RIAA Files Expected Appeal Over Judge's Decision To Decrease Jury Award In Jammie Thomas Trial

from the how-dare-the-judge-be-reasonable! dept

The RIAA's war against reasonableness continues. As totally and completely expected after Judge Michael David reduced the jury award against Jammie Thomas-Rasset from $80,000 per song shared to a still ridiculous $2,250 per song shared, the RIAA has now appealed the case to the Eighth Circuit appeals court. Now is when the case finally starts to get more interesting. The RIAA is actually challenging three parts from the three prior trials (as you may recall, the first two were tossed out). Specifically, the RIAA is asking:

Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a 'distribution' under 106(3) of the Copyright Act, and therefore refusing to enjoin Defendant from making Plaintiffs' copyrighted sound recordings available to the public.

Whether the District Court erred by concluding that it had committed an error in instructing the jury that making a copyrighted work available for download on a online file-sharing network constitutes a "distribution' under 106(3) of the copyright Act and therefor vacating the jury's verdict and ordering a new trial.

Whether the District Court erred by holding that the jury's award of statutory damages for defendant's willful copyright infringement violated the due process clause even though it was well within the range of damages awards authorized by 504(c) of the Copyright Act.

All three are interesting legal questions. The last one may be the biggest, but the hardest to succeed on. The reasoning used so far by two different judges in dropping jury awards is that the jury awards were so out of line with reality that they violated due process. The RIAA is scared to death that any sort of reasonable awards be associated with copyright law, because they're still under the ridiculously misguided belief that absolutely insane judgments for millions of dollars will scare people into no longer sharing files. The thing is, it's likely they have this misjudged in a big, bad way. The awards in the millions of dollars for just a few songs seem so incredible and so unfathomable, that most people simply think it's impossible. I honestly believe that they'd have a lot more luck if the fines were seen as much lower and much more within the grasp of the average file sharer. But the RIAA is not known for thinking logically.

The first two issues are actually important as well, though they'll get less attention. It's a key fighting point by the RIAA: which is whether or not a copyright holder needs to prove actual distribution to show an infringement of the distribution right under copyright law... or if merely "making available" constitutes distribution. This has been a major point of contention. The RIAA relies on a case about library books to say that merely "making available" is a violation of the distribution right, but other rulings and basic common sense on what constitutes distribution, suggest that merely making available is not, in fact, distribution by itself.

Filed Under: appeal, constitution, copyright, distribution, jammie thomas, making available, statutory damages
Companies: riaa

Judge Decreases Amount Jammie Thomas Owes For File Sharing Again (Yes, Again); Says It's Appalling

from the do-we-get-to-do-it-a-fourth-time? dept

Check out Judge Michael Davis. After the second Jammie Thomas-Rasset case had a jury return an award of $1.92 million for her sharing of 24 songs, the judge reduced the award from $80,000 per song to three times the statutory minimum of $2,250 per song. Of course, this resulted in a wild freakout by the RIAA... and a third trial. In the third trial (just on the award amount), the jury went with $62,500 per song shared, or $1.5 million total. Considering the massive freakout last time, you might think that Judge Davis would just be done with this, but instead, he's sticking to his guns, once again reducing the award to the same $2,250 per song. This really makes it the third time he's overturned the jury (though, the first time was because he felt he gave improper jury instructions).

Of course, the RIAA will once again freak out and this will be appealed. The judge's ruling, though, is well worth reading, calling the jury award of $1.5 million "appalling":

The Court concludes that an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first-time willful, consumer infringer of limited means who committed illegal song file-sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.

This reduced award is punitive and substantial. It acts as a potent deterrent. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not for this Court to make. The Court has merely reduced the jury’s award to the maximum amount permitted under our Constitution.

He notes that, given the past experiences with this dispute, he's "loath" to do this again, but "the Constitution and justice compel the Court to act."

Judge Davis is clearly aware that the RIAA would freak out about this, and lays out, in great detail, his arguments for why the original awards are unconstitutional (as a violation of due process) and why the maximum fine he believes is allowed under the Constitution would be the $2,250 per song he changed the award to.

The RIAA, of course, will continue to claim that the ridiculous million dollar plus awards for sharing 24-songs are perfectly appropriate. They'll claim, as they have in the past, that the fact that multiple juries came up with this amount shows that the public agrees such ridiculous fines are normal. As per usual with the RIAA, they're being misleading. The reason that juries reach such disproportionate awards is because of the way the choices are framed to the jury. There are all sorts of studies on how framing influences a jury, and how juries don't actually consider the proportional response of the offense to the punishment.

There's one other interesting bit in the ruling that won't get much attention. That is that the RIAA asked for an injunction barring Thomas-Rasset from infringing any further, and the court grants it... in part. It's the part that it doesn't grant, which is interesting. The RIAA asked for the court to say Thomas-Rasset should be barred from "making available" any copyrighted works via file sharing programs, but the court, correctly (despite the RIAA's long-term effort to pretend otherwise), points out that there is no "making available" right within copyright law. The Court is short and sweet on that point:

Plaintiffs further request that the Court include language in the injunction barring Defendant from making any of Plaintiffs’ sound recordings available for distribution to the public. Plaintiffs argue that, if Thomas-Rasset makes Plaintiffs’ copyrighted works available on a peer-to-peer network, she will have completed all of the steps necessary for her to engage in the same illegal distribution of Plaintiffs’ works for which she has already been found liable. Because the Court has held that the Copyright Act does not provide a making-available right, it will not enjoin Thomas-Rasset from making the copyrighted sound recordings available to the public.

While there's nothing really new here, it's nice to see that point reinforced once again. Making available, by itself, is not copyright infringement, despite the industry's attempts to portray it as such.

Filed Under: appeal, constitution, copyright, jammie thomas, statutory damages

Winklevii Trying Again: Suing Facebook Yet Again With A Different Argument

from the holy-crap:-give-up-already dept

Yesterday, we had a story about how the Winklevoss twins had finally realized that they had no chance to get a Supreme Court appeal of their own attempt to back out of a "settlement deal" with Facebook that made them at least $160 million richer (probably more by now). Like most people who read that story, we assumed that the Winklevii and partner Divya Narendra, had simply decided to take their millions and sulk. Instead, it looks like they are simply trying again with a different legal strategy.

Yes, a day after admitting that they wouldn't file a Supreme Court appeal, they instead made a new filing in the district court in Boston, once again attacking the settlement agreement (which they had agreed to), asking the judge to investigate if Facebook "intentionally or inadvertently suppressed evidence."

It is true that some instant messages that Zuckerberg wrote while he was supposed to be working with the Winklevii emerged after the settlement had been agreed to. The Winklevii didn't focus on those in their original attempt to back out of the settlement, instead claiming that Facebook had mislead them about the value of Facebook shares. However, now it appears they're starting again using the instant messages as evidence, and claiming that Facebook withheld the relevant evidence, and saying that they wouldn't have settled if they'd seen that evidence.

The thing is, while the evidence does make Mark Zuckerberg look like a jerk, I'm not sure it actually helps the Winklevii's overall argument. And, frankly, the whole thing remains totally pointless. The Winklevii failed to build a serious competitor, but we're talking about what was effectively the first few months of both companies (Facebook and ConnectU). Nothing about that means that they should get any credit whatsoever for what Facebook became. The fact that they already got $160+ million out of this is more than enough for their own failure to build a successful company. They should drop this effort, and maybe spend some time -- and maybe some of their piles of money -- looking into ways to deflate their massive sense of entitlement for something they had nothing to do with.

Filed Under: appeal, ideas, winklevoss
Companies: facebook

Winklevii Finally Realize That Appealing To The Supreme Court Is A Lost Cause; Will Have To Live With 'Just' $160 Million

from the poor-winklevii dept

When the Winklevoss twins lost at the appeals court for the second time, I had hoped that someone would sit them down and explain to them that there was simply no freaking way the Supreme Court would bother to hear an appeal on their case, in which they complain about how they settled for "only" $160 million for building a company that wasn't Facebook and wasn't very popular. And yet, they still insisted that they would appeal. I'm not sure who did it, but it appears that someone finally sat them down and explained to them how the Supreme Court works, what kinds of cases it takes, and how it would almost certainly react to a petition to hear their case... and it's finally dawned on them that this would be a good time to take the money (which is probably worth even more now thanks to Facebook's continued growth) and say, "thank you." Yes, it's true, the Winklevii have finally realized what the rest of the world realized a while ago: the case is done and there will be no appeal to the Supreme Court. I guess that storyline is now out of the running for the sequel movie to The Social Network. Thankfully, we've still got Paul Ceglia running around, and his story is a lot more entertaining anyway.

Filed Under: appeal, ideas, supreme court, winklevoss
Companies: facebook

Winklevii Promise To Appeal To Supreme Court

from the and-the-court-will-laugh dept

Well, that didn't take long at all. We noted that the tone deaf Winklevoss twins would probably appeal their latest legal "loss," which "only" entitles them to the $160 million or so from their original settlement with Facebook and Mark Zuckerberg. Even while I said I expected them to appeal since they'd already gone this far, there was still a little voice in the back of my head saying they couldn't possibly think that the Supreme Court could see a Constitutional issue to consider in their case. And yet... hours later, the Winklevii lawyer has announced plans to appeal to the Supreme Court. And I will announce plans to not laugh out loud when the Supreme Court turns them down.

Filed Under: appeal, ideas, supreme court, winklevoss
Companies: connectu, facebook

Winklevii Lose Again: Only Choice Now Is Supreme Court Appeal... Or Accept 'Just' $160 Million

from the poor-winklevii dept

Well, this is hardly a surprise. A month ago, Judge Kozinski told the Winklevoss twins (the "Winklevii") that they couldn't back out of their settlement agreement with Facebook and Mark Zuckerberg, which was worth "only" $160 million, saying, "At some point, litigation must come to an end. That point has now been reached." However, the Winklevii apparently couldn't just take their money and cry all the way to the bank, but asked the court for an en banc hearing (basically a rehearing of the appeal with all of the judges, rather than just a panel of three). As I stated at the time, I thought it would be a surprise if the court accepted this... and that was an easy call. The court has rejected the request without comment, meaning the only thing left to do is to appeal to the Supreme Court (well, or just take their $160 million...). Given how the Winklevii have acted up until now, it wouldn't surprise me at all to see them try to take this to the Supreme Court, though I can't fathom a situation under which the Supreme Court would care. This case was over a long time ago. It's just the Winklevii who haven't realized it yet.

Filed Under: alex kozinski, appeal, en banc, ideas, winklevoss
Companies: connectu, facebook

Winkelvi Officially Ask 9th Circuit To Rehear Their Case About How $160 Million For Not Doing Much Is Not Enough

from the how-do-you-spell-greed? dept

As was widely expected, the Winklevi have decided not to listen to Judge Alex Kozinski on the 9th Circuit appeals court, who told them that the "time is now" to end their ongoing lawsuit against Facebook, and that they should just be happy with the approximately $160 million they ended up with for totally failing to compete in the market place with Zuckerberg. Frankly, even if Zuckerberg really had "copied" their idea, $160 million seems like more than ample compensation. It wasn't the Winklevoss's idea that made Facebook successful (not by a long shot). It was the specific ways in which Zuckerberg and his team executed (combined with an element of luck). In fact, with a reward so ridiculously high for failing, all this sort of lawsuit does is encourage more silly lawsuits from other competitors who failed in the marketplace.

However, despite the court and plenty of commentators telling the Winklevi to cry all the way to the bank with their money, the twins and partner Divya Narendra, have in fact filed for an en banc hearing, asking the full slate of 9th Circuit judges to rehear the case, rather than just the standard three judge panel who heard the original. To be honest, I'd be surprised if the court agreed to the rehearing, but you never know. Typically, they'll do a rehearing where there really are serious questions of law, and significant conflict in how the judges view things with the case at hand. I just don't see the specifics of this dispute rising to that level. If that fails, the only choice left will be to appeal to the Supreme Court, who we can also hope will recognize more important issues at hand and pass on hearing the case.

Filed Under: alex kozinski, appeal, en banc, ideas, winklevoss
Companies: connectu, facebook