Recording Industry vs The People: Motion to Dismiss Made in Texas in Arista v. Greubel

Thursday, March 02, 2006

Motion to Dismiss Made in Texas in Arista v. Greubel

A new dismissal motion has been made, this time in Texas, in Arista Records v. Greubel, in the United States District Court, Northern District of Texas, Fort Worth Division.

In his motion papers Mr. Greubel argues that:

-the RIAA's attempt to recover $750 per song, while its actual damages are only 99 cents per song, is unconstitutional;

-since 2003 the RIAA has been actively engaged in "extortive and predatory litigation tactics" and misused the Courts to "create a veil of fear designed to frighten average consumers into paying thousands of dollars in settlements to avoid prolonged litigation";

-the RIAA's pleadings are "smoke and mirrors";

-the complaint lacks sufficient specificity;

-the "distribution right" upon which the RIAA vaguely relies does not apply to electronic transmissions; and

-even if it did, the mere act of making sound recordings available online does not constitute an actionable infringement.

Motion to Dismiss Complaint (Published at Internet Law & Regulation)

Mr. Greubel is represented by:

Mudd, Charles Lee, Jr.
Law Offices of Charles Lee Mudd Jr.
3344 North Albany Avenue
Chicago, Illinois 60618
773.588.5410
773.588.5440 (facsimile)
cmudd@muddlawoffices.com

Browning, John G.
Browning & Fleishman, P.C.
701 Commerce St., Suite 510
Dallas, Texas 75202
214-752-4130 phone
469-227-9010 fax
Email browninglaw@sbcglobal.net

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

6 comments:

raybeckerman said...: Dear oli,

I thought it was excellent.

It absolutely does make sense, and if the judge rules correctly, it will be granted, and the case thrown out.

There is only one dismissal motion of which I am aware that has been ruled on to date, so I don't see how you can have discerned a trend yet.

There is a long and clearcut tradition of what constitutes proper pleading of a copyright infringement case, and the RIAA's boilerplate -- identical in about 19,000 cases -- is not it.

Best regards,

Ray; February 26, 2006 at 6:58:00 PM EST
raybeckerman said...: There was also a dismissal motion in BMG v. Conklin, in Houston, but that one doesn't really count -- it was a litigant who didn't have a lawyer, didn't fully brief the motion. Also the judge didn't say what the ruling was based on.; February 26, 2006 at 6:59:00 PM EST
raybeckerman said...: The Santangelo motion is the one dismissal motion I was referring to.

There are several others in the pipleline, but we don't know their outcome yet: Maverick v. Goldshteyn, Elektra v. Barker, Arista v. Greubel. There's also one pending in Atlantic v. Andersen and another pending in Minnesota.; February 27, 2006 at 11:07:00 AM EST
raybeckerman said...: As to what's binding, it's only binding if it's from an appeals court, and then it's binding on every district court within its purview. A decision from a circuit court is binding on every district court within that circuit. If the US Supreme Court says it, then it's binding on all the federal courts.

If, e.g., the motion in Elektra v. Barker is granted.... the RIAA appeals... the Second Circuit affirms... the US Supreme Court denies cert.... then the 2d Cir. decision will be binding on every district court in the 2d Cir. If on the other hand the US Sup. Ct. granted cert, and affirmed, then it would be the law.; February 27, 2006 at 11:11:00 AM EST
raybeckerman said...: Dear Martin,

Yes, indeed, a federal circuit court decision would be a non-binding precedent for other other courts to consider. And in the example I gave -- Elektra v. Barker -- the precedent would be a highly persuasive one, since the Second Circuit has historically been the leader in the copyright field.

Best regards,

Ray; March 1, 2006 at 11:07:00 AM EST
raybeckerman said...: If the Second Circuit held that the RIAA's boilerplate complaint was insufficient, it would not leave the RIAA without "litigation options". It would leave them with the same options they, and any other litigant, has now:

1. If you think someone is infringing your copyrights, ask them to cease and desist. If they agree, enter into a cease and desist agreement.

2. If they do not agree, and you still have reason to think they are infringers, do an investigation, collect evidence that the person is violating your copyrights, and THEN bring a lawsuit.; March 1, 2006 at 11:12:00 AM EST

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove