In a new contested case in Brooklyn, Arista v. Finkelstein, the defendant has counterclaimed for a declaratory judgment of non-infringement and for damages based on plaintiffs' copyright misuse. The RIAA has filed a request for premotion conference in contemplation of a motion to dismiss both counterclaims.
Answer and Counterclaims*
March 8, 2007, Letter of Richard Guida to Judge Trager*
March 15, 2007, Letter of Richard Altman to Judge Trager*
Mr. Finkelstein is represented by Richard 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
7 comments:
I find it very amusing that the RIAA has used almost the exact (heck I didn't look that close it could be exact) same wording that they did in the Stubbs case. I guess they have something going for persistence but you would think they would at least try to reword it a bit more if it failed once. I was equally amused that Mr. Althman pointed that out in his letter.
This is a first(at least since I have actively been following the RIAA's campaign), The RIAA actually using the Noerr-Pennington doctrine. They must really wanted that counterclaim thrown out.
In your view, what consiquences would the RIAA face if the jury upholds this counterclaim?
I would think that the 13th Affirmative Defense should include that these suits are filed for maximum publicity value, and not legal redress. It shouldn't be hard to prove given, I believe, the RIAA has said as much in the past. This also makes the suits suspect.
Also in the 1th AD, that the RIAA should well know now that the IP address is an unreliable indicator of just where the computer alledged to share the files may have been located, and who may have both installed the filesharing software, and was using it at the time. It has certainly been sufficiently established in other cases by now that this is the case.
They forgot the one about that the Plaintiffs have already been compensated for all filesharing in their settlement with KaZaA.
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In Richard Guida's letter to Judge Trager, the author states "Defendant was found distributing the digital music files...". Oh really? Already guilty, huh? They further state, "...Defendant was actively distributing to millions of users..." They know exactly who it was then? How do they know this? Where is their proof. Why hasn't it been disclosed already. How can you make such wild statements to a judge without such ironclad proof?
Also the industry tries to have counterclaims dismissed due to being duplicative. In short, they believe they can accuse you publically of anything they wish, and then deny you your day in court to clear your name at any time by getting your counter claims dismissed, and cutting and running if it looks like they might lose. If they can get a dismissal without predjudce, they can't even be assess attorney's fees. So can't someone make the case that they've already been damaged by the time things reach this point and easily defeat any attempt to dismiss counter-claims?
Interestingly, the RIAA wraps themselves in the flag when they claim they have their own First Amendment right to petition for redress, yet at the same time are trying their hardest to deny that right to the defendant who is now claiming damages from the plantiff's actions. Can you spell hiporcracy?
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Interestingly, Richard Altman refers to a 3-page limit for letters to the judge. Richard Guida's letter is 4 pages of dense type.
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At the end they claim that the defendant's counter-claims seek to prevent commencement of this litigation, yet the RIAA are the ones who cut and run before their cases are decided in court, denying wrongly accused defendant's their day in court. Truly amazing that this constitutes accepted legal practices.
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Sure would love to see the industry found guilty of monopoly copyright misuse and stripped of them. That would truly be the ultimate defeat.
If it is upheld they will be in deep trouble.
If I remember correctly in the Lindor case, last year Judge Trager and/or Levy said he would like that the discovery and all this stuff should go further before he find the motion for summary judgement suitable to rule over.
My (of course totally unimportant) opinion therefor is that he should not rule at this moment over the dismissal motion of the counterclaim in this case, but should let the case go fürther like Judge Castel did.
Judge Castel's decision sounds fair to me in the same way like I thought it is fair to have all the discovery demands entertained in the Lindor case.
Of course back them Judges Trager/Levy couldn't imagine that the plaintiffs would come up with always new and frivoulous (mugshots for example from nonparty's) discovery demands.
Ray, wasn't there a conference set in Lindor for march?
Yes there is oral argument scheduled for March 26th at 11 am on motion to compel production of Woody Raymond materials.
if i understand it correctly those court sessions are recorded on tape.
I would feel sorry if i must wait again 6 month before i could read a transcript of this hearing.
to me this hearing seems VERY important because what the RIAA want here from a non-party is totally new ground and unprecedented in your FRCPrules.
Please ask the judge if it is OK that the court reporter provides you with a copy of that recording. Modern 21st century distribution technology could distribute it without problems for any server if the public has overwhelming interest in this very very important hearing!
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