The RIAA has made a motion to dismiss the defendant's counterclaims in Atlantic v. Boggs, in Corpus Christi, Texas.
Plaintiffs' Motion to Dismiss Counterclaims*
Mr. Boggs is represented by Charles Rogers of Conley Rose, based in Houston, Texas.
* 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
8 comments:
More arguments to pick apart:
"Defendant’s second counterclaim seeking a declaration that statutory damages established by Congress are unconstitutional has been rejected by numerous courts and fails because the Congressional intent behind allowing a plaintiff to elect statutory damages is to achieve a variety of goals beyond compensating copyright holders for actual harm."
Just because Congress enacted them doesn't make them Constitutional. And where yet have any of these numerous courts alluded to actually decided the constitutionality of this issue? If it was decided somewhere, I'd expect that specific decision to be cited.
"As a direct result of piracy over the P2P networks, Plaintiffs have sustained and continue
to sustain devastating financial losses."
None of these losses are provable, meaning that they're complete speculation on the part of the plaintiffs. There could easily be completely unrelated reasons for the decline in sales, and nobody should ever believe by now that every download equates to a lost sale.
"After attempting to settle or otherwise resolve their claims informally before filing a lawsuit,"
Now that's a hoot. To read that implies that there was actually some flexibility in the settlement talks, rather than a flat take-it-or-be-sued position on the part of the plaintiffs.
"involve the use of online media distribution systems (also known as file-sharing programs)"
Wow, they finally admit that these OMDS's are also known as file-sharing programs.
"Indeed, the Department of Justice states that online media distribution systems are “one of the greatest emerging threats to intellectual property ownership,”"
I doubt that the DoJ referred to them as online media distribution systems. The funniest part of that name is that no actual "media" is ever distributed, which makes the calling it such a thing another BIG LIE. Look, your Honor, they're distributing unauthorized media. Lock 'em up and throw away the key. They should not be allowed to use that term ever again for that reason alone.
"Plaintiffs’ losses from on-line music piracy have resulted in layoffs of thousands of employees in the music industry."
Again completely unprovable. Plaintiffs' decline in profits from reduced CD albums sales might be a more truthful statement, but what does truth have to do with any of this?
"Courts in the Fifth Circuit routinely dismiss complaints for failure to state a claim upon which relief can be granted..."
Taken a bit out of context, but seems to me Plaintiffs have filed such a claim themselves.
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So Ray, why do they want to dismiss the counter-claims so badly if they do nothing more than restate the affirmative defenses already given? Seems to me that the claims in both circumstances would win or lose together anyway, but someone typed a 20-page motion here to get rid of the counter-claims now. How do these counter-claims actually hurt the plaintiffs?
"Defendant’s second counterclaim seeking a declaration that statutory damages established by Congress are unconstitutional has been rejected by numerous courts and fails because the Congressional intent behind allowing a plaintiff to elect statutory damages is to achieve a variety of goals beyond compensating copyright holders for actual harm."
Just because Congress enacted them doesn't make them Constitutional. And where yet have any of these numerous courts alluded to actually decided the constitutionality of this issue? If it was decided somewhere, I'd expect that specific decision to be cited.That's right. Every act of congress does go through the courts eventually, and every time the RIAA does bring one of these suits to the courts, any revelent law can be fair game to be examined by the courts(in this case, it is the amount of statutary damages that the plantiff's claim.)
I also don't think that the counterclaims will go away because I think that affirmative defenses on one case shouldn't apply to counts on a counterclaim. I'm sure that Ray will correct me on this, LOL.
So Ray, why do they want to dismiss the counter-claims so badly if they do nothing more than restate the affirmative defenses already given?
I don't know. Generally I've only been able to detect one consistent strategy: everything the RIAA's lawyers do seems calculated to maximize the amount of legal work.
and also the fees paid to the riaa's outside lawyers
IMO they are fighting the counter claims because of Stubbs. They don't like the fact that they may actually be locked into presenting them selfs for actual judicial / jury decisions on the merits of their case. Which of course we know they don't have much hope of winning (we all know that Juries can and do decide some odd things so they technically still have a shot). The true thing they risk by filing frivolous lawsuits is that once ANYONE actually wins in a definite way the plan will backfire. One way or another their fear campaign is at least in the back of peoples minds, even if they dismiss the odds of being sued*. If they get a judgment that their MediaSentry system is flawed, then even that little stop gap is gone and people will take the common belief that it is legal (flawed as that is or not).
Honestly the RIAA has overstepped and now are in deep trouble. I assume the Labels wont be too thrilled to have them shown (publicly and officially) to be flawed. Or of course worse, that they have abused their copyright and thus loose it. Personally I think it would have been better for them to have found a few STRONG cases first against individuals where they can do a good HD exam and then step up the numbers. They goofed bad and now they can't go back to that and they are afraid and running scared.
* Most people I speak to feel that the odds of being sued are the same if your using a ptp network or not, so they might as well get music they can actually use.
note moved from other thread where I posted it on accident
From what I can see, they want to dismiss the counterclaims because if they choose to drop the case, it will be much more likely that they'll get a dismissal without prejudice if they don't have further claims against them. With the counterclaims, they have a higher risk of the judge dismissing their case while allowing the counterclaims to continue.
I hope Mr. Boggs attorneys have read the brief of Richard A. Altman above in regards to trying to dismiss the counterclaims in that case, before they file their own in this case.
They might even improve on it, although that would seem hard to do.
good point, amd....
yes i'm sure all the riaa defense lawyers who are aware of my blog will be reading mr. altman's brief with great interest....
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