P2P Jury Award Set Aside

RIAA's $222,000 verdict in Capitol v. Thomas set aside. Judge rejects 'making available'; attacks excessive damages. [Article]

September 24, 2008, decision setting aside verdict

Synopsis from Ray Beckerman:

In Capitol v. Thomas, District Judge Michael J. Davis has set aside the jury's $222,000 verdict and ordered a new trial, ruling that his jury instruction -- which accepted the RIAA's "making available" theory -- was erroneous. He also rejected the 'offer to distribute' theory.

Nail and Mail - The Bronx

Warner Bros. Records Inc. v. Berry, No. 07 Civ. 1092-HB, 4/15/08 N.Y.L.J. "Decision of Interest" (S.D.N.Y. decided Apr. 9, 2008).

The court adopted Magistrate Judge's recommendation to deny Plaintiff's default judgment application and dismissed the case.

Plaintiff's alleged that Defendant used KaZaA to download, distribute and make available for distribution the copyrighted recordings of certain artists in violation of the Copyright Act. Over a year before filing the complaint, Plaintiffs served AOL (an ISP), which identified Defendant as the person responsible for the IP address that was using KaZaA. AOL provided Plaintiff's with an address for Defendant in the Bronx, NY. Plaintiffs then hired a process server, whose attempts at service were "unsuccessful"; thereafter, the process server affixed one copy on the property in the Bronx. and depositing a copy of the summons in a first class post paid envelope addressed to the same address.

However, the Court found that service on Defendant was defective and therefore dismissed the complaint. "Here, service was defective under the 'nail and mail' method [CPLR 308(4)] because Plaintiffs' process server both affixed and mailed the summons to Defendant's last known residence."

Though the mailing component of service by "affixing and mailing" may be to the defendant's last known residence, "the 'affixing' component must be to the door of the defendant's actual place of business, dwelling place or usual place of abode, and not to the defendant's last known residence. To blur the distinction between 'last known residence' and 'dwelling place' 'would diminish the likelihood that actual notice will be received by potential defendants.'"

However, the Court did not adopt the Magistrate Judge's recommendation that Plaintiffs be ordered to show cause they they did not violate FRCP 11(b). The Court found that "while Plaintiffs' lawyers should be faulted for failing to keep closer tabs on their process server and for failing to better supervise their paralegal, their actions do not rise to the level of a Rule 11(b) violation. Plaintiffs' lawyers might have been sloppy in their attempts to serve Defendant, but giving them as officers of the Court the benefit of the doubt, all their representations to this Court were...nor for the improper purpose of unnecessary delay."

P2P Infringer Identified Beyond Mere IP Address

In this copyright infringement case filed in the US District Court District of Nevada, the defendants were identified -- beyond their mere IP address -- for alleged unauthorized distribution of 728 sound recordings over a P2P network in September 2005. Notably, the complaint (Exhibit A) only lists one sound-recording per plaintiff (record label), with the corresponding "SR #" (i.e., copyright registration), instead of each of the alleged 728 infringements.

Two things are of interest to OTCS. First, the complaint explains to the court in two paragraphs the technology behind P2P and IP addresses. Second, why the 2+ year delay in filing suit? Were the parties negotiating, or were they just asleep at the wheel?

[Elektra Entertainment Group Inc. et al v. Jaqueline Meredith Walton; 2:07-cv-01557-RCJ-GWF; filed 11/21/2007]

Here is a nearly identical complaint, filed in the District of Massachusetts, for the alleged infringement of 300+ sound recordings in November 2005 over the Kazaa P2P network. Again, the plaintiffs (record labels) spend a mere two paragraphs on P2P/IP addresses, waited 2+ years to file suit (who uses Kazaa anymore?), and only listed 5 sound recordings (Exhibit A, with corresponding copyright registrations) instead of each of the alleged 300+ infringements.

[Virgin Records America, Inc. et al v. Dobson; 1:07-cv-12176-NG; filed 11/21/07]