Thursday, September 29, 2005

Another Motion to Dismiss in New P2P Fileshare Case in Brooklyn Federal Court, Atlantic v. Huggins

On September 28th, another motion to dismiss an RIAA complaint in a peer to peer file sharing case has been made, this time in Brooklyn federal court, in Atlantic v. Huggins.

Under the court rules, a letter describing the motion is required, which will be followed by a court conference, prior to the service of formal motion papers.

The defendant's lawyers argued as follows:

The Federal Rules of Civil Procedure require that a complaint give “fair notice of the claim asserted [to allow the defendant] to answer and prepare for trial.” Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995). In copyright infringement cases, Rule 8(a)(2) “require[s] a plaintiff to plead with specificity the acts by which a defendant has committed copyright infringement.... [The complaint] must set out the ‘particular infringing acts ... with some specificity. Broad, sweeping allegations of infringement do not comply with Rule 8.” Marvullo v. Gruner & Jahr, 105 F.Supp.2d 225, 230 (S.D.N.Y. 2000) (italics added).
In copyright infringement cases, a complaint must therefore allege, inter alia, “by what acts during what time the defendant infringed the copyright.” Marvullo, supra, 105 F.Supp.2d at 230 (italics added); Brought to Life Music, Inc. v. MCA Records, Inc., 2003 WL 296561 at *1 (S.D.N.Y. Feb. 11, 2003) (granting Rule 12(b)(6) motion where “[p]laintiff ha[d] not attempted to describe ‘by what acts and during what time’ [the defendant] infringed the copyright”). See also Plunket v. Doyle, 2001 WL 175252 at *4-6 (S.D.N.Y. Feb. 22, 2001) (dismissing copyright infringement claim under Rule 8 because it “fails to describe the time period during which infringing acts occurred).
Here, the Complaint alleges in conclusory fashion and upon information and belief that defendant used “an online media distribution system” to download and distribute certain alleged copyrighted recordings to the public, and/or to make such recordings “available for distribution to others.” Complaint, ¶ 12. The Complaint makes no attempt to describe the specific acts of infringement or the dates and times on which they allegedly occurred. Indeed, the Complaint does not allege any actual instances of downloading or distribution.
Moreover, the allegation that defendant merely made these recordings available for distribution to others fails to state a copyright claim. It is well established that there is no liability for infringing upon the right of distribution unless copies of copyrighted works were actually disseminated to members of the public. Arista Records, Inc. v. MP3Board, Inc., 00 Civ. 4660, 2002 WL 1997918 at *4 (S.D.N.Y. Aug. 29, 2002) (“[i]nfringement of the distribution right requires an actual dissemination of ... copies”) (emphasis added); National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426, 434 (8th Cir. 1993) (“[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords”) (emphasis added) (citing 2 Nimmer on Copyright § 8.11[A], at 8-124); In re Napster, Inc., 377 F.Supp.2d 796, 802 (N.D.Cal. May 31, 2005) (copyright owner must prove that the defendant “actually disseminated” copies of the copyrighted work to members of the public).
Thus, it is fundamental that the mere listing of copyrighted works in an index of files available for downloading by others does not violate the copyright owner’s right of distribution. In re Napster, Inc., supra, 377 F.Supp.2d at 802, 805 (granting summary judgment on this issue); Arista Records, supra, 00 Civ. 4660, 2002 WL 1997918 at *4 (posting on MP3Board website of links leading to infringing audio files does not establish unlawful dissemination of copies of such files to the public). See also Obolensky v. G.P. Putnam’s Sons, 628 F.Supp. 1552, 1555-56 (S.D.N.Y.) (publisher did not infringe on copyright owner’s right of distribution of copyrighted book by listing the book in a trade publication as belonging to publisher where publisher neither copied the book nor sold any copies of the book; “there is no violation of the right to vend copyrighted works ... where the defendant offers to sell copyrighted materials but does not consummate a sale”), aff’d, 795 F.2d 1005 (2d Cir. 1986); 2 Paul Goldstein, Copyright § 5.5.1, at 5:102 to 5-102-1 (2d ed. 2000 & Supp. 2005) (“an actual transfer must take place; a mere offer for sale will not violate the right”); SBK Catalogue Partnership v. Orion Pictures Corp., 723 F.Supp. 1053, 1064 (D.N.J. 1989) (merely “authorizing” a third party to distribute copyrighted works without proof that the third party actually did so does not constitute copyright infringement); CACI Intern., Inc. v. Pentagen Technologies Intern., 93 Civ. 1631, 1994 WL 1752376 at *4 (E.D.Va. Jun. 16, 1994) (marketing of software package without actually distributing it does not constitute copyright infringement).

September 28th Letter to Judge Trager.

Complaint.

Defendant is represented by Ray Beckerman, Morlan Ty Rogers, and Daniel A. Singer of Beldock Levine & Hoffman LLP

15 comments:

Anonymous said...

IN YOUR FACE, RIAA!
J00 HAV BEN PWNED!!!!

Chaotyk said...

I sure hope that shows the RIAA to stop being such fsckin' retards...

icepick314 said...

why is RIAA getting all the settlement money?

just how much have gone back to the artists they are so hellbent on protecting?

do songwriters and singers care all that much about RIAA's effort?

Anonymous said...

Offering copyrighted files for distribution may be tantamount to intent to have infringement occur.

Anonymous said...

The RIAA don't care about artists, they only care about how much cash they have available to snort up their nostrils. Hanging a few small children to achieve this aim is what free-rein capitalism is all about.

Matthew Brown said...

RIAA: Recording Industry Association of America. Neither A stands for artists. Boycott the big labels!

Anonymous said...

No specific charges? Wouldn't the dozens upon dozens of pages attached to the complaint order be the specific violations levied against the defendant?

Anonymous said...

I would also think the pages at the end of the complaint would be the instances of sharing. Could it be that maybe they dont have the time these instances occured?

Locutus said...

Anonymous said...
Offering copyrighted files for distribution may be tantamount to intent to have infringement occur.

However, this is not necessarily the case. One may choose to list these files as available, while disallowing the actual transfer of files as a method of bragging on how many legally obtained files one owns. Such an instance is clearly legal, and since this is a legal use of the P2P system, as well as trading works of public domain and one's own works, a person cannot be held liable for intent if it might not exist.

Jonathan said...

It strikes me that simply listing files available for download, rather than actually providing evidence (including date and time) that files were shared, is a very dangerous precedent. What would stop the RIAA for suing someone because they left a CD unguarded somewhere (where someone could easily pick it up and copy the music), for example?

Considering the cost of most CD's, it could be argued that a reasonable person would not leave a CD lying around unless there were intent to share the material on the CD...

Anonymous said...

They ant protecting the artists they are protecting their own pockets.. And trying to wipe out innovation in the process are they blind to the benefits it could bring them if they embraced it rather then fought it...

Anonymous said...

Just a thought, what are the consequences if someone is convicted in this or a similar case? Monetary? Incarceration? Or both?

What would be the consequences if the person was convicted, fined and then stated before the judge that they did not have the funds or the intent to pay the fines levied? I realize that the judge would have to take some suitable action in this instance but, what political, public and corporate fallout would ensue from this? Would the recording industry receive such bad publicity for destroying the lives (martrydom) of a single mother/father/low income family, their family, friends and relations that they would have to rethink their policies?

In fact, what sort of public relations nightmare would occur if the RIAA was portrayed as robber barons bent upon destroying the lives of people and then having an actuual group of living, breathing examples to parade before the press.

Mad_MaxB said...

In the complaint, the plaintiff shows no link to the defendant to the files on Kazaa. So would this not require the court to assume that the defendant is AKA sakdjkas@filesshare.***?

Ray Beckerman said...

The dozen pages of documents annexed to the complaint are merely a list of the files that were in a shared files folder. No specific allegation or evidence that that they were obtained illegally, or that anything illegal was done with them.

mp3 music sharing said...

Blogging is still new to me Blogger. I never heard of or knew what a blog was until about 6 months ago. Wow, there are so many of them it's amazing. Now they're everywhere. And it seems like everyone has one but me. I was looking for websites with info about peer to peer. Then I decided to try blogs. Anyway, I'm trying to improve my site at http://www.p2p-mp3-filesharing.com for all the music and movie lovers out there, and was originally looking for relevant information I could use. Got sidetracked a lttle bit....lol. It was interesting. Thanks Blogger, Mike
Hi and hello there Blogger, I get sidetracked easily these days. After spending many hours checking out websites looking for peer to peer related info. I decided to try some blog sites. I found much more usable and updated information on the blog related sites than the regular websites...this is very cool. I gotta get me one of these when I find the time. My site at http://www.p2p-mp3-filesharing.com needed some updated info. After that, I thought I would check out some of the other kind of blog sites. Some are pretty cool. It's been fun. Thanks Blogger, mike