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Monthly Archive for March, 2010

sarah mcdowell

[may i ask my class to advise whether i have the liberty to rip and copy a portion of the boston legal disc to distribute to them with assignment to deliberate? but also to read harrow’s critique of the the tekila petition with a view to writing a petition in harper. here’s beckerman’s write up of it. everybody missed this, and note how little attention it’s received since. why is riaa pursuing cases against innocents? is it because copyright has never before been so strong in court and doj and here is opportunity to salt into accepted law copyright industry authority to use federal power to punish innocents as its means for teaching?]


Here is a district court judge vainly fighting back, another like the district judges in whitney harper’s case and jammie thomas-rasset’s, and still to be seen what is to be said of the judge in joel tenenbaum’s case.

ELECTRA ENTERTAINMENT GROUP INC., a Delaware Cor-poration, SONY BMG MUSIC ENTERTAINMENT, a Delaware General Partnership, UMG RECORDINGS, INC., a Delaware Corporation, BMG MUSIC, a New York General Part-nership, WARNER BROTHERS RECORDINGS INC, a Delaware Corporation, and ARISTA RECORDS LLC, a Delaware Limited Liability Company, Plaintiffs, vs. SARAH MCDOWELL, Defendant.

CASE NO. 4:06-CV-115 (CDL)


2007 U.S. Dist. LEXIS 82208; 84 U.S.P.Q.2D (BNA) 1850

November 6, 2007, Decided
November 6, 2007, Filed

COUNSEL: [*1] For Elektra Entertainment Group, Inc., A Delaware corporation, Sony BMG Music Entertainment, a Delaware general partnership, UMG Recordings, Inc., a Delaware corporation, BMG Music, a New York general partnership, Warner Bros. Records, Inc., a Delaware corporation, Arista Records LLC, a Delaware limited liability company, Plaintiffs: Elizabeth L. Ballard, LEAD ATTORNEY, Atlanta, GA; M. Anne Kaufold-Wiggins, LEAD ATTORNEY, Atlanta, GA; T. Joshua Archer, LEAD ATTORNEY, Balch & Bingham LLP, Atlanta, GA.

For Sarah McDowell, Defendant: William J. Mason, LEAD ATTORNEY, Columbus, GA.




Presently pending before the Court is Plaintiffs’ Motion for Summary Judgment (Doc. 10). For the following reasons, Plaintiffs’ Motion is granted in part and denied in part.
BACKGROUND Plaintiffs filed this claim under the Copyright Act, 17 U.S.C. §§ 101, et seq., seeking damages, a permanent injunction, and costs. Specifically, Plaintiffs claim Defendant Sarah McDowell violated the Copyright Act when she downloaded and distributed, via the internet, copyrighted sound recordings. Plaintiffs ask for the statutory minimum damages allowed under the Copyright [*2] Act, $ 750 per infringement. 17 U.S.C. § 504 (c) (1). Although Plaintiffs contend that Defendant was actively distributing more than one thousand songs when Plaintiffs detected her actions, Plaintiffs are only seeking damages for forty-eight acts of infringement. 1

1 Plaintiffs have attached to their Motion for Summary Judgment a list of sound recordings that Defendant allegedly downloaded. (See Pls.’ Mot. for Summ. J. Excerpt 1.) Defendant claims that she did not download seventeen of the listed songs. (Def.’s Dep. 60:9-63:8, Apr. 17, 2006.) Plaintiffs are not seeking to recover damages for the songs Defendant denied downloading.
Defendant admits that she violated the Copyright Act, but claims that the statutory damages should be reduced because Defendant is an innocent infringer. Under the innocent infringer provision, the damages may be reduced to $ 200 per act of infringement. 17 U.S.C. § 504(c)(2). Defendant asks for a jury trial on the issue of her innocent infringement.


I. Summary Judgment Standard
Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no [*3] genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party has the burden of showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). This burden can be met by showing that the non-moving party will be unable to “establish the existence of an element essential to [the non-moving] party’s case, and on which [the non-moving] party will bear the burden of proof at trial.” Id. at 322.

Once the moving party has met its burden, the burden shifts to the non-moving party to show that there is a genuine issue of material fact. Id. at 324. A fact is material if it “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). There is a genuine issue if the evidence would allow a reasonable jury to find for the non-moving party. Id. In other words, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.

II. Innocent Infringer under the Copyright Act
The Copyright Act allows an “aggrieved [*4] party to elect either actual or statutory damages.” Cable/Home Commun. Corp. v. Network Prods., Inc., 902 F.2d 829, 850 (11th Cir. 1990) (citation omitted). Statutory damages for each infringement can be awarded “in a sum of not less than $ 750 or more than $ 30,000 as the court considers just.” 17 U.S.C. § 504 (c) (1). However,

[i]n a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $ 200.

17 U.S.C. § 504 (c) (2). This provision allows for the reduction of damages against an “innocent infringer.”

Pursuant to 17 U.S.C. § 504(c)(2), “[t]he burden is on the defendants to establish that any infringement was innocent.” D. C. Comics Inc. v. Mini Gift Shop, 912 F. 2d 29, 35 (2d Cir. 1990). “[I]t is not sufficient for a defendant merely to claim such innocence, and then rely upon the plaintiff’s failure to disprove the claim.” Id. (quotation marks and citation omitted). In making a determination as to whether a defendant is an innocent infringer, [*5] the factfinder must look “into the defendant’s state of mind to determine whether he or she was not aware and had no reason to believe that his or her acts constituted an infringement.” Id. (citation and internal quotation marks omitted). The factfinder can consider “[t]he level of so-phistication of the defendant” in determining whether the defendant is an innocent infringer. Id. at 35-36.
Section 402 (d) of the Copyright Act limits the application of the innocent infringer provision. Where

a notice of copyright in the form and position specified by [17 U.S.C. § 402] appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504 (c) (2).

17 U.S.C. § 402(d). Therefore, a defendant who violated a copyright by downloading data to a computer would not be an innocent infringer if he or she had “‘access’ to records and compact disks bearing the proper [copyright] notice.” BMG Music v. Gonzalez, 430 F.3d 888, 892 (7th Cir. 2005).
Here, [*6] Defendant claims she has created a question of fact as to whether she is an innocent infringer, and therefore she is entitled to a jury trial on the issue. Plaintiffs respond that Defendant “had access to proper copyright notice at any location sound recordings are sold,” and consequently Defendant cannot be an innocent infringer. (Pls.’ Reply in Supp. of Pls.’ Mot. for Summ. J. 3.) First, the Court finds that there is a question of fact as to whether Defendant, as a thirteen or fourteen year old child at the time of the infringement, was aware or had reason to believe that her acts constituted an infringement of a copyright. Second, assuming that Defendant was an innocent infringer, there is a question of fact as to whether Defendant had access to the notice of copyright such that her innocent infringer defense has no mitigating effect. 2 Defendant is therefore entitled to a jury trial to determine the proper amount of statutory damages under 17 U.S.C. § 504 (c) (2). See Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 353, 118 S. Ct. 1279, 140 L. Ed. 2d 438 (1998) (“The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner.” [*7] (emphasis in original)); Gonzalez, 430 F.3d at 891 (“[C]ases under § 504(c) are normal civil actions subject to the normal allocation of functions between judge and jury. When there is a material dispute of fact to be resolved or discretion to be exercised in selecting a financial award, then either side is entitled to a jury[.]”)

2 Plaintiffs contend that Defendant had access to the copyrights because she has, in the past, bought compact disks from a retail store. (See Def.’s Dep. 20:5-10.) Plaintiffs’ argument is flawed because it ignores the fact that, at the time of her deposition, Defendant had just bought a compact disk from a retail store. (Id.) Defendant did not state whether she regularly purchased compact disks from retail stores at the time she infringed upon Plaintiffs’ copyrights. In fact, Defendant was only thirteen or fourteen at the time of the infringement. Additionally, Defendant declared that at the time of the copyright infringement, any compact disk she may have owned would have been bought for her by her mother. (Def.’s Decl. P 2, Aug. 1, 2007.) There is therefore a question of fact as to whether Defendant “had access” to the notice of copyright.

III. [*8] Permanent Injunction
Plaintiffs also seek a permanent injunction to prevent Defendant from further copyright infringement. The Court has discretion to grant an injunction “on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502 (a). An in-junction is appropriate in this case given Defendant’s multiple violations of the Copyright Act. Consequently, Plaintiffs’ Motion is granted as to their claim for injunctive relief. Defendant is hereby enjoined from directly or indirectly infringing Plaintiffs’ rights under federal or state law in any sound recording, whether now in existence or later created, that is owned or controlled by Plaintiffs or any parent, subsidiary, or affiliate record label of Plaintiffs (“Plaintiffs’ Recordings”), including without limitation by using the internet or any online media distribution system to reproduce (i.e., download) any of Plaintiffs’ Recordings, to distribute (i.e., upload) any of Plaintiffs’ Recordings, or to make any of Plaintiffs’ Recordings available for distribution to the public, except pursuant to a lawful license or with the express authority of Plaintiffs. Also, Defendant shall destroy all [*9] copies of Plaintiffs’ Recordings that De-fendant has downloaded onto any computer hard drive or server without Plaintiffs’ authorization and shall destroy all copies of those downloaded recordings transferred onto any physical medium or device in Defendant’s possession, custody, or control.

IV. Costs
Finally, Plaintiffs request costs in the amount of $ 350. Section 505 of the Copyright Act provides that a court, in its discretion, may award costs. 17 U.S.C. § 505. The Court defers ruling on this issue until there is a determination as to whether Defendant innocently infringed upon Plaintiffs’ copyrights. Therefore, Plaintiffs’ Motion is denied as to their claim for costs.
Plaintiffs’ Motion for Summary Judgment (Doc. 10) is granted as to Plaintiffs’ claim for injunctive relief and denied as to Plaintiffs’ claims for damages and costs.
IT IS SO ORDERED, this 6th day of November, 2007.
S/Clay D. Land

boston legal

i want to show my class the setup to a deliberation from boston legal and wonder can i do it without copyright violation. how can they watch it, only on dvd from class, with sufficient assurance of stopping play at the point of deliberation. i’d like a digital file of the story with that as its end-point. may i rip what i have, which is a disc as pictured with copyright notice in such small font that it can hardly be deciphered, and make the file i want and need to teach my class?

what can you do with a harvard law school class

a good question to be thinking about as a teacher whose focus is teaching how to frame argument.

here’s the opening to a piece that explores a young lawyer’s role in civilian review of police. it reads like the opening of a procedural novel. what is civilian review of police about? By Alex DeSantis.


It was three in the afternoon on a sunny summer day when Ms. Linda Brillant walked into 40 Rector Street to file a complaint. I grabbed my interview materials and went out to the waiting area. Ms. Brillant was an older black female, approximately sixty years old, wearing a tattered summer dress and flip-flops. She had with her a wire pushcart, full of plastic bags, crumpled papers and old cans. After I introduced myself, we talked informally for a moment, and before the interview began I knew it was going to be a long afternoon.

Ms. Brillant was extremely difficult to understand, mumbling and whispering as she told me her story. She began sometime in the mid 80s, recounting her relationship with her landlord and daughter. There was no real continuity to her ramblings, and I couldn’t keep her on track. She told me about how she saw Osama Bin Laden at the Puerto Rican Day Parade, and how Mayor Bloomberg forced her to watch pornographic videos on occasion at her apartment in Brooklyn. Ms. Brillant also told me about her time in a refugee camp, where she was forced to eat cookies against her will. Occasionally, Ms. Brillant would pull out an old scrap of paper from her cart or her pocket, showing me a telephone number of some important witness or the name of a lawyer that helped her obtain an order of protection against her ex-boyfriend. For at least the first hour of our conversation, I wasn’t sure if she even had a complaint against the NYPD. (Civilians often came in with complaints about something other than the police, a likely occurrence when you work at the Civilian Complaint Review Board.) Sure enough, Ms. Brillant eventually started to talk about how several police officers entered her apartment on a number of different occasions and pushed her to the floor. Of course, she had no dates or times, couldn’t describe any of the potential subject officers, and had no information about witnesses who might be able to shed some light on these incidents. Ms. Brillant was certain that following these interactions, the NYPD began watching her constantly, bugging her apartment and listening to all of her conversations.

I was a fairly senior investigator at the CCRB when I met Ms. Brillant that day. I had handled hundreds of complaints, both large and small in scale. On my investigative team, I was considered adept at civilian interviews, especially those involving “walk-in” complainants like Ms. Brillant. We often got people like Ms. Brillant at the agency, people who might have had emotional or psychological conditions, homeless people, and others who relayed fantastic incidents like her. Most of the investigators there hated talking to the Ms. Brillants of New York City; they saw it as a waste of time when they could be working on other more important investigations that might actually “go somewhere.” But I enjoyed talking to Ms. Brillant, and everyone else that came in to file complaints. I found it extremely interesting to speak with people from all over New York, people so unlike myself. I kept Ms. Brillant talking to me for hours, as we went over and over her interaction with the NYPD, trying to get any piece of information I could possibly obtain. I listened to her, and I thought that alone was a valuable service.

Looking back on Ms. Brillant and her complaint, I feel sad. As I walked back to my desk and began to process all of the information she had just provided, only two things were clear: Ms. Brillant needed my help, and I couldn’t help her.