In a White Plains, NY, case, Lava v. Amurao, the defendant has filed papers opposing the RIAA's motion to dismiss his counterclaims for (a) a declaratory judgment of non-infringement, and (b) copyright misuse:
Memorandum of Law in Opposition to Plaintiffs' Motion to Dismiss Counterclaims*
Mr. Amurao is represented by Richard A. Altman, of Manhattan.
* Document published online at Internet Law & Regulation
Keywords: digital copyright online 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
4 comments:
Here is definitely a marvelous example of conciseness, and one which other lawyers should copy in these cases, unless it is violative of Richard A. Altman 's copyright.
"All of these cases can be easily reconciled and the rule stated in a few sentences: Once an action is finally determined on the merits in a defendant’s favor, there is no need for a counterclaim. However, when a plaintiff seeks to prevent the determination of the merits and tries to withdraw a complaint without prejudice, a declaratory judgment counterclaim will be permitted to stand, because it is the only means by which a defendant can have his day in court and obtain a judgment of noninfringement. And in any event, at the pleading stage the counterclaim should not be dismissed so long as it goes beyond the main claim, is a compulsory counterclaim, and has an independent jurisdictional basis."
And then he speaks to the obvious now, and what should have been obvious from the beginning:
"Plaintiffs should no longer be permitted to bring these frivolous and sanctionable cases and then simply walk away when their assertions are vigorously challenged. Defendant is entitled to his day in court, and to a positive declaration that he is not a copyright infringer."
By having so many virtually identical cases, a lot of arguments against the RIAA are being developed and refined. This may not be the outcome they expected, although it seems so obvious in hindsight. Americans are stubborn. Piss them off and they fight back.
The RIAA is also being bitten at both ends now by new technology. Digital music abounds in both legal, and questionable forms. And Lexas certainly assists in locating cases to dispute their contentions on what they believe should be fair and right. That's a double hit, to be sure.
It is indeed a superb brief.
Altman's brief is a model of well founded clarity which stands in contrast to the RIAA briefs which are convoluted.
I hope that the clarity is a appreciated. Sometimes people seem to be more impressed by jargon and obfuscations that make the author seem like they must be smart even though their arguments are poorly founded.
Be funny if the copyright misuse claim flys and the judge imposes the usual punitive action: void of copyright on the work.
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