Monday, November 28, 2005

Motion to Dismiss Denied in Elektra v. Santangelo

The motion to dismiss in Elektra v. Santangelo has been denied. The ruling came in a 6-page written decision by Judge Colleen McMahon.

The ruling means that Ms. Santangelo will have to file an answer, and go through pretrial discovery, and possibly a trial.

Copy of decision.
(Alternate link)

Comment:

We are very disappointed in the Court's ruling.

The meaning of it, if other judges follow it, is that no one will be able to get
the RIAA's baseless lawsuits dismissed without going all through all the expense
and anguish of pretrial discovery, and either a summary judgment
motion or a trial.

It also means that no one will be able to get a Copyright Act attorneys fee award until after months or years of litigation.

As a result, it would be economically impossible to defend these lawsuits.

Under the federal rules, the order is not appealable, so it is the law of the case until a final judgment is obtained by the RIAA or by the defendant.

From this point on I will have to advise any litigants who are sued in Judge McMahon's Part, that they have no way of defending themselves without spending thousands, probably tens of thousands, of dollars.

-Ray Beckerman






Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaaradar

20 comments:

dave racine wi. said...

A bad day for the judicial system in America Ray. Guilty or not it looks like the average Joe has their choice 3750.00 to the settlement center or 10s of thousands for legal defenses. I think its time for America to turn off their computers until these judges get thier act together.This is plainly extortion. Who have these people paid to get this power?

Ray Beckerman said...

I agree with you Dave.

Today was a very bad day for the judicial system in America.

Let's hope and work for some better days ahead.

Anonymous said...

Ray, thanks for the great work you're doing. I hope you will continue with this case, when Ms Santangelo wins then other judges may have the confidence to dismiss similar cases.

Emil

Jonathan said...

OK, so if multi-billion-dollar corporations now decide, en masse, to start filing bogus lawsuits using fabricated evidence against average private citizens to extort them for money, what are the citizens to do?

You know, that really doesn't sound like a bad idea. Perhaps I need to start a corporation designed to do exactly that. Sounds like a viable business model.

Is this really the way our legal system is supposed to operate? And if not, what can be done?

Jonathan said...

You know, maybe we'll all get lucky someday and the RIAA will accidently sue a lawmaker. I can think of little else that would stop this sort of thing.

Jonathan said...

Ray,
On what grounds did the judge deny the motion to dismiss? Can you give any sort of overview? Is there any sort of ray of hope in all of this, or was it a flat-out bad ruling?

What the heck happened?

This has be extremely concerned. I'm on the internet and have an IP address; granted, there are about four billion IP addresses out there, but if someone randomly picks me for a lawsuit, what the heck am I supposed to do?

Ray Beckerman said...

Dear Jonathan
The whole decision will be posted, probably tomorrow.
The judge felt that the complaint's vague allegation of downloading, uploading, and/or distributing was good enough.
I truly do not understand how she can have possibly concluded that.
Ray

Anonymous said...

This sounds like a bunch of bull.
Not only could someone hack into your computer and download stuff through your computer, and thus leave your ip; other people could also be using your computer. There are to many variable in play for a clear ruling, and when left up to a competent judge or jury, there should be reasonable doubt.

Anonymous said...

Judge Coleen McMann is, in my opinion, a good example of what is wrong with the Judiciary. I don't know if you've been before her before, but she is rarely careful in her judgements and will frequently completely miss arguments presented to her, get confused over simple things like the date sequences of cases before her, and form strong opinions without having anywhere near all the facts before her. Like politicians, she has "advisors" and it is best to be on their good side. I would never go into her court without strong connections and ways to get her to see your side outside of normal channels. I am not saying she is corrupt or dishonest, and not disrespecting the Court, just stating my opinion. There are a lot of attorneys who regularly go before her and a lot of them will level with you regarding her.

You will have to let the case play out. My advise is to position yourself for an appeal. This is a game of chess and you don't know what is going on in the background.

DAVE said...

So if Iunderstand the statement has used and continues to use an online media system is enough to establish a time line as far as the court is concerned! What a joke this is also said on the summons my minor daugter was served last week. So when we appear in court I wonder if this will suffice as enough evidence even though I have never used Such a system myself and any such service was removed from our computer in Febuary 2004

ken flaxman said...

Another view

The order denying the motion to dismiss is a faithful application of federal notice pleading standards. Really. If the court had granted a motion to dismiss, the order would have been reversed on appeal. Really.

The last paragraph of the order invites a motion for summary judgment to present the narrow legal question about the liability for the internet illiterate parent who does not know Kazaa from a kazoo. And yes, a motion for summary judgment can be filed before extensive discovery.

With all due respect, it is unfair to criticize a routine application of the notice pleading standard of the Federal Rules of Civil Procedure as a "very bad day for the judicial system in America." And no, I am not now, nor have I ever been, an IP lawyer. I am, however, a vigorous proponent of notice pleading.

Ray Beckerman said...

I disagree with Mr. Flaxman's view.

1. The making of a summary judgment motion does not avoid the need for pretrial discovery. The courts usually require the parties to go forward with discovery even though they have made a summary judgment motion.

2. I have rarely seen a summary judgment that is not somewhat expensive. Even if the motion papers are simple, the RIAA will throw in voluminous opposition papers which will require careful reply papers.

3. I saw no such 'invitation' in the judge's decision. Please tell me where the 'invitation' is.

Best regards,

Ray

Ray Beckerman said...

Another point about Ken Flaxman's comment is that he's missing the context.

I'm saying that it was a very bad day for the judicial system in America because it allowed someone who's abusing that system -- by bringing tens of thousands of suits without any due diligence prior to instituting suit, and then using its economic might to bully people into submission -- to keep on engaging in that practice, at least to the extent that Judge McMahon's decision may be followed.

It is beyond debate that the RIAA is bringing these cases without ANY evidence that an infringement has actually occurred.

Anonymous said...

Something I hope you're aware of as you take on these cases is the fact that IP addresses can be spoofed and hackers can gain unauthorized access to other people's machines remotely. The fact that they claim they can know who actually downloaded their protected material is extremely suspect.

Anonymous said...

What would stop some criminal to use the dcma to get personal info for identity theft, mass murder, rape and what ever else they can think of.

We all need to start to do something to cost these companies money that are giving in to the illegal tactics of the riaa/mpaa. By what even means we can come up with!

From what i can tell it not hard to get the isp to give in, and the ip block info can be found on-line.

ke said...

Invitation for Summary Judgment
If "the RIAA is bringing these cases without ANY evidence that an infringement has actually occurred,"
an early motion for summary judgment -- a "put up or shut up" motion -- would be appropriate.

Courts really don't "require" the parties to undertake discovery. Of course, a party opposing a motion for summary judgment can try to persuade the judge that discovery should be allowed or that the motion deferred until the conclusion of discovery, but opposing such a motion with evidence of the defendant's modest means and the simplicity of the dispositive issue may well be a better approach than a motion to withdraw.

Early summary judgment motions are commonplace in civil rights cases.
Really. But it's not my case. (And we've both come a long way since the class of '64).

Anonymous said...

it is interesting reading that as it makes sense and the way it has been set out and explained is logical but you can't help feeling its a poor piece of work! In other words if that was part of my law degree work it would get me a decent mark but its very unadventurous!

I suppose what I am saying is that I read that and although I can't disagree with the factual way the judge put it I KNOW that anotehr judge could have gone the other way totally, she seemed to be hiding behind precedents from before and not thinking for herself thats how it seemed to me.

We need judges that think for themselves and she is sadly lacking at this time it seems and since then with you guys sending your former client off on her own it seems that whatever games you are playing to get sympathy (or whatever motive you have) are dangerous for her, more than yourselves.

I strongly oppose all this litigation, I want to qaulify as a laywer (6 months left here in UK) and then become a record exec. to stop this nonsense as that seems to be the best way to do it!

No4bobbyorr13 said...

I think I may have a solution, and maybe you sharp guys are already there. Patricia Santangelo, now in pro per, after winning her case is the first lead plaintiff in a class action vs. the RIIA for an unfair business practices (in California we have 17200 of the Business & Professions Code) namely, the authorization, boilerplate preparation and mass filing of thousands of frivolous lawsuits (each without specific knowledge of any distinct infringementon the part of each defendant--coupled with the extortion attempt to settle) and a finding that they are "vexatious litigants", seeking as damages the legal fees and costs for each defendant, as well as an order prohibiting them [RIIA]from filing additonal lawsuits without court approval for each filing. If the venue were California, [and despite the SLAPP statute] I think not only would this approach fly, it would sail on to victory.
GOOD LUCK AND KEEP UP THE GOOD FIGHT.
A concerned Cali-Atty.

Ray King said...

I would just like to comment on this recording industry Law Suits!

#1: A computer system is persons own personal property! If some one goes online and looks into some ones else’s computer system then they are trespassing on their personal property! These people should be held accountable for these actions. They have no right to look on anyone’s computer unless there is a court order!

I think the Law Suit should be against the investigator and recording companies that looked on some ones else’s computer with out their permission or a court order!

Raymond L. King
Custom Software Designers

Moulton said...

The RIAA cases are yet another instance of an insidious cancer that permeates the practice of law.

It's called Legal Abuse Syndrome, and it's one of the fastest growing varieties of Post Traumatic Stress Disorder in America.

Almost any branch of law is susceptible to Legal Abuse Syndrome, in which defenseless people are bullied and intimidated with the willing cooperation of the legal establishment.

A particularly vicious example can be found, for example, in Condominimum Law, where minor disputes escalate through the courts until the legal fees outstrip the original dispute by orders of magnitude. It is not uncommon for people to find themselves paying tens of thousands of dollars in legal bills over an issue that barely exceeded the maximum for small claims court.

Legal Abuse Syndrome is a cancer that transcends the RIAA example.

In the case of Patricia Santangelo, the RIAA case amounts to financial rape and ruin of a family of six. Is a pirated CD such an egregious offense that it justifies the financial impoverishment of an entire family, most of whom are children?

Anyone who believes that a system of law which inflicts that scale of economic ruin over a lousy pirated CD has surely taken leave of their good senses.

How can anyone believe in a system which operates so callously, unjustly, disproportionately, and heartbreakingly?