Offices of Charles Lee Mudd Jr.
Legal Representation to Individuals and Business Organizations
and MPAA Legal
| RIAA Legal Initiative
| Judicial Opinions
Our Representation of P2P File Sharers
Overview of Content
The summaries of judicial opinions below
serve as selected highlights arising from the Recording Industry
Association of America's ("RIAA") and Motion Picture Association
of America's ("MPAA") effort to litigate against consumers
who have allegedly used peer to peer (P2P) file-sharing software
to allegedly infringe copyrights owned by the RIAA and MPAA. The
summaries have been organized first by jurisdiction (country, circuit,
or district) and, in some cases, may be organized by cases (eg Gonzalez
or Grokster) and/or holdings within the jurisdiction. This content
will be updated periodocially. Please note that the interpretations
and summaries presented herein represent only a perception and should
not be relied upon as legal representation or legal argument.
For additional information, please visit
the Electronic Frontier Foundation which also has a number of documents
related to the various RIAA suits
and Related Authority
While there exists substantial blogging and posturing on
individual efforts to fight back against the Recording Industry
Association of America and the Motion Picture Association of
America, there should be no question that the MPAA and RIAA
continue to "win" victories in its litigation efforts.
Consequently, one should not base any action upon what might
occur or what someone else happens to be arguing in a different
Apart from the United States Supreme Court whose authority
all federal courts must follow, a decision in one court (whether
at the federal trial level - United States District Court -
or the federal intermediate appellate level - United States
Court of Appeals) does not dictate how a different court at
the same level must rule. For example, a ruling before the United
States District Court for the Northern District of Illinois
does not dictate how the United States District Court for the
Southern District of New York must rule. Rather, authority from
one court only acts as persuasive authority to another court
at the same level. At the same time, a ruling by the Seventh
Circuit Court of Appeals serves as binding authority for its
lower courts, but only persuasive authority for courts in other
Because the MPAA and RIAA have fought and continue to fight
litigation on a number of fronts across the United States, caution
should be exercised in relying upon what one court dictates
as the law. That being said, one can be confident in the conclusion
that most courts thus far, at trial or later upon appeal, find
for the MPAA and RIAA. Therefore, "fighting" the RIAA
in litigation continues to be with greater risk than settlement
alternatives, however disdainful they may be.
With that knowledge, Law Offices of Charles Lee Mudd Jr. remains
committed and willing to fight the RIAA should any client desire
to adopt this approach. At the same time, we also remain committed
to provide those who wish to settle with the representation
BMG Music, et al
9 December 2005 The Seventh Circuit for the
United States Court of Appeals affirmed summary judgment against
Cecilia Gonzalez in the amount of $22,500 (oral
arguments and opinion
available online). In Gonzalez, the Defendant admitted
to downloaded at least some of the files at issue. The court
based the judgment on the minimum statutory damage award of
$750 per infringement. Although more than 1,000 files exist
in her folder, the judgment focused on only 30 of these files.
On appeal, Gonzalez' arguments failed to persuade the Seventh
Circuit of her position. Indeed, the Court's opinion established
primary liability for those who download files. Thus, liability
may be sought by the RIAA or MPAA not simply for "making
[the files] available for distribution" in a shared folder,
but also where an individual has downloaded copyrighted files.
The Court further cast doubt on the fair use argument that downloading
files to "sample" or "preview" them before
deciding to purchase would be premissible. Indeed, in the Gonzalez
case, the Court rejected the defense.
MGM v. Grokster
27 June 2005
The Supreme Court ruled
on the much discussed MGM v. Grokster appeal from the
United States Court of Appeals, Ninth Circuit. The Supreme Court
of the United States concluded that the District Court entered
summary judgment in favor of Grokster in error. It therefore
reversed the lower court's entry of summary judgment in favor
of Grokster and remanded the case. The Court held that its prior
decision in Sony (the Betamax case) did not preclude consideration
of evidence demonstrating intent to induce or promote infringement.
The Supreme Court concluded that the record clearly demonstrated
the unlawful objective behind Grokster.
Will the decision in Grokster have an impact on the individual
user of Grokster or other P2P software? Not Directly. It should
demonstrate to individuals that Grokster does not represent
a safe or "legal" product. Arguably, it also reinforces
the proposition that P2P file-sharing remains illegal under
the current copyright regime. Thus, while it may not affect
one directly, the RIAA and MPAA may use the decision to reinforce
their position that use of Grokster and P2P software like Grokster
remains illegal. They will be sure to contend that the Supreme
Court's decision removes much doubt as to the illegality of
the software and the underlying activity. Thus, while they have
little to know sympathy, there will likely be less tolerance
for any claims of ignorance of the law.
For more information, the Electronic Frontier Foundation has
a number of documents available here.
Motions to Quash
Effort to Quash Subpoenas Fails:
United States District Court, Southern District of
New York rules against motion to quash subpoenas, 04 CV 473
D.C. Circuit Rules Subpoenas
Not Proper Under DMCA in RIAA Initiative: The
D.C. Circuit Court of Appeals has issued an
opinion holding that subpoenas sent to ISPs (in this case
Verizon) by the RIAA pursuant to the DMCA are not enforceable
because § 512(h) of the DMCA "does not authorize the issuance
of a subpoena to an ISP acting solely as a conduit for communications
the content of which is determined by others." The D.C.
Circuit did not address Verizon's larger constitutional arguments.
Stay tuned for a more in depth summary. In the meantime, individuals
who receive notice from their ISP regarding a subpoena from
the RIAA should immediately contact their ISP, inform them they
object to the subpoena and any release of their information,
and cite the D.C. Circuit opinion. Thereafter, they should immediately
contact legal counsel.
5 December 2005 Sharman Networks
has theoretically shut down operations of its KaZaA website
as to Australian users pursuant to a court order requiring,
by December 5, 2005, that it either implement a filtering system
by which unauthorized transfers of files can be blocked or "shut
down" its operation. While existing users of KaZaA will
not be affected (though the use of KaZaA to download or upload
files without license arguably remains illegal and may subject
users to infringement suits - particularly here in the United
States), Sharman Networks arguably must preclude use by new
The order entered against Sharman Networks stems activities
occuring in February
2004 when the Australian recording industry raided Kazaa's Syndey,
Australia offices. A law known as the "Anton Pillar"
permits parties in civil copyright suits to obtain evidence
from opposing parties (more information on the Anton Pillar
law is available at
www.freedomfight.ca). This information can apparently
be obtained through raids of the opposing parties premises without
This information later played a role in the suit brought by
the RIAA against Sharman Networks, parent firm of the KaZaA
file-sharing program. The suit resulted in a trial and judgment
concluding that the users of KaZaA engaged in copyright infringement
and a requirement that Sharman Networks modify the software.
Sharman Networks has
appealed the judgment
against it which should be heard in February 2006.
March 31, 2004, a Canadian Court issued an
opinion in BMG Canada Inc., et al v. John Doe, et al. (Docket
T-292-04, Citation 2004 FC 488) that upheld a challenge by some
Canadian ISPs to the disclosure of the identities of their Canadian
customers sought by the Canadian recording industry.
All parties in the dispute (members
of the Canadian recording industry, on the one hand, and Canadian
ISPs, on the other hand) agreed that "ISP account holders
have an expectation of privacy that their identity will be
kept private and confidential." The expectation arises
from the contractual relationship with the ISPs and the Canadian
Personal Information Protection and Electronic Documents Act
(PIPEDA). However, section 7(3)(c) of the PIPEDA permits the
disclosure of personal information pursuant to a court order.
The Court denied the Canadian recording
industry's motion for expedited discovery. This ultimate decision
came about because of a number of factors the court addressed.
However, the two most significant aspects of the holding are
(1) That "[t]he mere fact of
placing a copy on a shared directory in a computer where
that copy can be accessed via a P2P service does not amount
to distribution;" and,
(2) That the privacy interests outweighed
the public interest concerns in favor of disclosure because
the Plaintiffs delayed in proceeding to obtain the information
(2-5 months), the unreliability of the information (as determined
it seems from the ISPs affidavits) and "the serious
possibility of an innocent account holder being identified.
Limitations of Holding:
I believe caution should be
made before making too much of the Canadian opinion.
(1) While the Court appears to suggest
that file-sharing may be legal, the holding can be construed
to be much more limited than this broad interpretation.
The Court followed by stating that "[b]efore it constitutes
distribution, there must be a positive act by the owner
of the shared directory, such as sending out the copies
or advertising that they are available for copying."
Significantly, the Court next stated that "[n]o such
evidence was presented by the plaintiffs in this case. They
merely presented evidence that the alleged infringers made
copies available on their shared drives." Thus, should
evidence be provided to support what the Court determined
to be necessary, the Court may rule differently.
(2) The Court specifically noted
that the motion before the Court was not novel and that
all other courts addressing the issue (the disclosure of
documents indentifying a defendant previously identified
by only an IP address) had determined that the interests
in obtaining the identification outweighed the privacy interests.
Thus, the Court's holding on the balance between privacy
and copyright should be viewed very cautiously and narrowly.
Impact on United States:
(1) United States law may differ as
to whether "placing a copy on a shared directory in a
computer where that copy can be accessed via a P2P service"
constitutes distribution or infringement under United States
copyright law. Only a United States court can determine this
interpretation of United States copyright law (as opposed
to common law copyright infringement). Moreover, if jurisdictions
differ on this interpretation (as they have in other varying
aspects of RIAA jurisprudence), there may not be consensus
until either the Circuits or the Supreme Court resolves the
potential inconsistent opinions.
(2) As persuasive authority, the Canadian
holding certainly suggests limitations and deficiencies in
the presentation of evidence by the recording industry.
(3) The Court also implicitly suggested
that a different ruling may be obtained under the
World Intellectual Property Organization Performances and
Phonograms Treaty (WPPT) ,
specifically Chapter II, Article 10. The Court did not address
the WPPT further because Canada has not yet implemented the
treaty. However, the United States has implemented the treaty
as of May 20, 2002.
I found it interesting that the Court
took the time to express the limitations on the order that
it would have issued had it found that the balancing factors
weighed more heavily on the side of the recording industry.
Importantly, this suggests that the Court foresaw the possibility
of granting the motion under different circumstances. Interestingly,
the Court provided a means by which only the online pseudonym
would replace the IP address in the public portion of the
pleadings. The Court stated that a confidential addendum would
then match the pseudonyms with actual identities of the individuals.
In any case involving the disclosure of identities, all of
us who may challenge the disclosure should push for such a
privacy approach in the alternative should the Court grant
the Recording Industry's motion.
more detailed analysis of the opinion is beyond the scope of
this web page. Some people may differ in their interpretation
of the opinion. Because this page has been established to provide
individuals with information regarding the issues involved,
I have taken a very cautious approach to the interpretation
of this and other opinions. People should not take the Canadian
opinion to suggest that file-sharing of copyrighted material
is legal in the United States.
|GERMANY, ITALY and OTHER COUNTRIES
2004 The RIAA has filed suit against individuals
in Denmark, Germany, Italy and other countries.
|December 2004 The Supreme Court in the Netherlands
has ruled that the mere offering of KaZaA software is not illegal.
is available courtesy of the Netherlands lawfirm SOLV
who has also provided a
summary of the opinion (see also its weblog
with English translation toward the bottom).
|This page and its contents (except where quoted
and otherwise indicated herein) are © 2004-2006 Law Offices of
Charles Lee Mudd Jr. Anyone may link to this site. As stated above,
this page and its contents have been provided for informational
purposes only and SHOULD NOT BE CONSIDERED LEGAL ADVICE or LEGAL
REPRESENTATION. While anyone may quote portions of this page,
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