General

Viacom Has Chutzpah (or Perhaps Bad Judgment) to Suggest That Second Circuit Reassign Its Case Against Youtube In Event of a Remand

“The thing to fear is not the law, but the judge.” – Russian Proverb 

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Viacom has filed its opening brief in its second appeal in Viacom v. Youtube. This long-running copyright case is establishing important precedents in the interpretation of the  Digital Millennium Copyright Act (DMCA).*

 *See this link for my most recent post on this long-runing case.

In its current appeal Viacom argues that the trial court judge erred in granting Youtube summary judgment following remand from the Second Circuit’s 2012 decision in this case.

The appeal raises many difficult and important issues in applying the DMCA, and it remains to be seen whether the Second Circuit will add clarity or confusion to this complex law. However, one element of Viacom’s argument jumps out instantly. Viacom’s brief includes a section titled “This Court Should Exercise Its Discretion To Remand The Case To A Different District Court Judge.” The text of the argument in support of this request, in its entirety,  is as follows:

Given the protracted nature of this litigation (the case is now well into its seventh year) and the evident firmness of the district court’s erroneous views regarding the DMCA, this Court should exercise its discretion to remand the case to a different judge “to preserve the appearance of justice.” E.g., United States v.

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Whitey Bulger and Gorky Park

by Lee Gesmer on June 14, 2013

“The FBI is an unindicted coconspirator in the massive racketeering case against Whitey.” – Kevin Cullen, Boston Globe, June 14, 2013

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I wonder if Martin Cruz Smith had Bulger in mind when he wrote this in 1981:

The FBI doesn’t conduct investigations, they pay informers. … Their informers are mental cases and hit men. Where the bureau touches the real world, suddenly you get all these freaks who know how to kill people with piano wire. Say a freak gets caught … he tells the bureau what it wants to hear and makes up what he doesn’t know. See, that’s the basic difference. A cop goes out on the street and digs up information for himself. He’s willing to get dirty because his ambition in life is to be a detective. But a bureau agent is really a lawyer or an accountant; he wants to work in an office and dress nice, maybe go into politics.

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For Lawyers Turned Video-Porn Mass Copyright Plaintiffs, Litigation May Not Pay

I didn’t think I’d have a chance to write another “what were they thinking” post only two weeks after the last one. But, here goes ….

I’ve written about Bittorrent swarm mass copyright suits in the past, but Monday’s decision by California federal district court judge Otis D. Wright tops everything that has come before. A lot of people have followed this case and similar cases filed by so-called “Prenda Law”Ingenuity 13 v. John Doe. In other words, the plaintiffs in this case have made a lot of people mad.*

*Techdirt is at or near the top of this lengthy list.

The Ingenuity 13 case has been dismissed, but on Tuesday the judge issued a withering sanctions decision in the case. Here is some of what he had to say.

The opening paragraph of the opinion sets the stage for the indictment that follows:

Plaintiffs have outmaneuvered the legal system.

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Federal Judge Tells Redigi to Shut It Down

by Lee Gesmer on April 2, 2013

Federal Judge Tells Redigi to Shut It Down

As I reluctantly predicted last week, U.S District Court Judge Richard Sullivan has ruled that Redigi’s digital resale business is not protected by the first sale doctrine. His March 30, 2013 decision falls squarely in line with the arguments made by Capitol Records and rejects all of Redigi’s positions.

I have written quite a bit on this case (here and here), and there is nothing new or surprising in the court’s decision. The court described the issue before it as “the novel question . . . whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine.” In answering this question the court emphasized that because it is “a court of law and not a congressional subcommittee or technology blog, the issues are narrow, technical, and purely legal.” Indeed, the court hewed closely to the statute.… Read the full article