On September 27, 2011 a first amended complaint was filed in the Davis et al v. AT&T et al antitrust case, now a proposed class action. Plaintiffs have added Unjust Enrichment as a cause of action based upon the U.S. wireless carriers' aggregate gross income of over $40b from MMS since inception. Plaintiffs contend that the actual gross amount may be much greater and will be determined more accurately within discovery with the permission of the Court. The case is 11-02674 DDP
and it appears below this article.
(max's completed thoughts are here)

Luvdarts LLC & DigiPie File Opening Brief in Appeal Against AT&T, Verizon et al in Ninth Circuit
by Glenn Clarke

On September 20, 2011, the appellants' brief in the Luvdarts LLC et al v. AT&T et al was filed in the Ninth Circuit.   The case number is 11-55497 and is linked
after this article.

What's at stake here is nothing less than the future of creators' rights to monetize peer to peer sharing of their content.  Mobile multimedia messaging (MMS) is not some great new art form that will inspire new heights of creativity at this point.  Its potential as a new tangible medium of expression is only just beginning.  But, at this moment in time - MMS is a secured system that can provide true accountability for transactions of stuff being exchanged.
(Glenn's completed thoughts are here)

"It Was on the Internet, I Thought it Was Free!" - a great photographer tells it like it is - a Laurin Rinder interview

What kind of changes over the years have you noticed
that affect photographers like yourself?
Laurin:  Of course one of the biggest changes was the digital camera, I still shoot both film and digital as per clients needs but honestly, to me digital has opened the way and the eyes of many amateurs to explore a new medium and the instant gratification that comes with it..........
(Laurin's complete interview is here)

I Am a Music Producer - Imagine Being Without Music for Three Days
by Jeff Weber

I am a music producer. My stock in trade is passion. The songwriters, singers and musicians I work with are some of the most passionate and selfless individuals on the planet. Their agenda is to create a moving, evocative piece of work that is so powerfully engaging it creates a gripping emotional connection with those that hear it. It instantly and seamlessly weaves itself into the very fabric of our being............
(Jeff's completed thoughts are here)

Photographers United = $$$$$$
by max davis

While it's easy to point to the Internet and digitization as the reason photographers can no longer protect their content with any degree of efficiency - it is much harder
to come up with new ideas that will compensate for that disruption.  Let's face it, this is about money......
(max's completed thoughts are here)

MMS is Not the Internet
by Floyd Crump

Technology is growing at such a rapid pace that we are lagging in trying to keep pace on all fronts.  As a former Information Services Professional, I have seen tremendous changes since I first entered that industry in the middle 60’s.  In my opinion the development of the digital technology has opened the gates for the greatest strides in advancements.
(Floyd's completed thoughts are here)

My name is Rudyard Vance (stage name Que Fountaine), a graduate accountant, MBA, and a performing keyboardist in the San Francisco Bay Area.  I am the owner operator of Vance Economic Services, an accounting firm in business for over 30 years.  As most, I have been an artist longer than I have been an accountant.  My first gig was as an opening act for Ike and Tina Turner at the Long Island Club in the heart of the ghetto in San Francisco.  The pay was $25 a night.  For a 12 year old that was good, but changes came to the industry like a cold shower at 4 am.
(Rudyard's completed thoughts are here)

To Pro-Copyright Proponents and Progressives
by max davis

There is a case in the Ninth Circuit (appeal 11-55497) that represents an excellent opportunity to help re-establish the importance and the integrity of the United States’ copyright system within the data/digital age.  The order granting the MTD is here - Luvdarts LLC et al v. AT&T et al.

The Plaintiffs are moving to establish the responsibility of businesses that provide new technologies outside of the Internet which rely exclusively upon the distribution of others’ copyrighted works.  Plaintiffs are simply seeking to make the Defendants provide a system of accountability and fair compensation to copyright holders.

In this particular case the Defendants are the largest wireless carriers in the United States, however, the responsibility to account for the distribution of copyrighted multimedia should be the same for any size business, large or small, that is based upon the distribution of others’ copyrighted works.

Since in this instance the Defendants’ file sharing systems being challenged are not via a general purpose telecommunications system, the Defendants do not qualify for “safe harbors” via U.S.C. Title 17 § 512 et seq.  As you will see within the case documents, the Defendants did very little to dispute this allegation and instead put the weight of their arguments on discounting the validity of the copyrights and their right and ability to control any infringing activities.

While eventually they conceded the validity of the copyrights in question they succeeded in misleading the Court about their right and ability to control any infringing activities on their sub-system of mobile networks dedicated exclusively to the peer to peer file sharing of others’ copyrighted works.

Plaintiffs have overwhelming and compelling evidence
that directly contradicts the Defendants’ stated position regarding “right and ability” and non-responsibility; however, the Plaintiffs were prevented from presenting this evidence in discovery because of the deception by the Defendants and subsequent dismissal of Plaintiffs’ case with prejudice by the Court and thereby the denial of discovery or a second amended complaint from Plaintiffs.

Thus, the basis for appeal.  Appellants’ opening brief was filed on September 20, 2011.  Appellee’s answering brief is due by October 20, 2011.

FRAP 29 (e) states; “Time for Filing. An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant’s or petitioner's principal brief is filed.  A court may grant leave for later filing, specifying the time within which an opposing party may answer.”

Whether you weigh in for the Appellant or the Appellee, this is a potentially precedent
 

setting case that will have large ramifications for the future of creators’, artists’ and copyright holders’ ability to uphold their rights as granted by U.S. copyright laws within the new data/digital age.

In particular, U.S.C. Title 17 § 106 which grants the owner of copyright the exclusive rights to do and authorize the distribution of said copyrighted work is in serious jeopardy of being seriously undermined and devalued if these issues are not addressed expeditiously.

To put things in perspective, the Defendants have published the fact that 56 billion copyrighted multimedia messages were sent and received via their file sharing system in 2010.  If you ask each Defendant how much of that activity was infringing and how much was not they cannot and will not answer you and yet they grossed approximately 15 billion dollars in the U.S. alone in 2010 because of these very same activities.

They paid the copyright holders nothing from these activities.

In the interest of full disclosure, I am the founder of this organization (GDRI) who’s mission is to establish accountability and fair compensation on mobile peer to peer file sharing systems.  I am also a principle of the entities (Plaintiffs) in our members' lawsuit against the Defendants.

I urge you to get involved.  Do not miss this opportunity to make a difference.

/max davis/

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                   short takes