Thursday, April 12, 2007

Battle Raging in Tucson, Arizona, in Loud v. Sanchez; RIAA Allowed to Amend Complaint to Add Daughter As Defendant

We have just learned of a battle that has been raging in Tucson, Arizona, in Loud v. Sanchez.

The RIAA sued a middle aged man who has never engaged in p2p file sharing. During the course of the litigation they came to believe that his daughter, rather than he, had been engaged in filesharing.

They thereafter brought on a motion, last November, to amend their complaint -- not to drop the father as a defendant, but to add the daughter.

Thereafter, on April 10th of this year, they sought to withdraw their motion and drop the case entirely against the father, without prejudice, indicating an intention to bring a separate suit against the daughter.

Unbeknownst to them, however, the day before the Court had granted their motion for leave to amend to add the daughter.

Defendants thereafter filed an answer and counterclaims to the amended complaint, counterclaiming for (a) a declaratory judgment of non-infringement and (b) money damages for prima facie tort under Arizona law.

Plaintiffs' Motion to Amend Complaint*
Order signed April 9, 2007, and entered April 11, 2007, Granting Plaintiffs' Motion to Amend Complaint*
Plaintiffs' Notice Withdrawing Motion to Amend Complaint*
Defendants' Answer and Counterclaims*

Defendants are represented by Edwin Eloy Aguilar of the Karp Heurlin Weiss law firm in Tucson, Arizona.

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet

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:

AMD FanBoi said...

Is this a HaHa moment yet?

AMD FanBoi said...

Regarding the unconstitutional excessive statutory damages, someone should point out that Plaintiffs continue to claim such damages despite knowing, or should have known given how many times it's been pointed out to them now, that such damages have been ruled against by SCOTUS. Isn't this a fraud on the Court itself to knowingly make such claims? I thought lawyers certified when bringing a case that their claims were well-grounded. They could, in theory (IANAL) lose on these grounds alone, which would be a significant setback for them.

And why didn't this guy know at the John Doe stage that he was being suit? Given that he had councel at the pre-litigation settlement phase, he must have been aware of a looming problem. If he wasn't notified by his ISP about their turning over personal information about him based on dubious legal theories in the initial phase of the RIAA assault, does he have a case against his ISP? And if he doesn't use a computer normally, an e-mail from said ISP hardly qualifies as proper notice.

Apparently the court allows saying that my favorite color is pink on one's MySpace page as sufficient to charge someone using the name npink with a civil court case. Leads me to wonder, if whomever this was that was detected by Media Sentry had been using a name of random letters and numbers, would they have tried to sue them at all? They seem to want to use the KaZaA names they detect as a way to tie the alleged infringing activity to specific people (e.g. jrlindor).

When reading the November motion to amend and add the daughter, the judge acknowledges that the father is still in the case. Seems to me that keeping a known non-party (there is no evidence at the moment that the father did anything except pay for an Internet account) really got the RIAA in trouble in another case. But I guess they don't learn.

Todd said...

Well, the RIAA amended the case to add the daughter without dropping the father back last fall, before they got nailed on it. They tried withdrawing it only just now, just after they'd gotten nailed. This looks to me like the RIAA, having discovered that they won't be allowed to get away with that, trying to run away before anyone noticed. Except they didn't run quite fast enough.

Barlow said...

WOW, I think they (RIAA) have stayed to long at the fair on this one.

I don't know what the Tort damages could be but since they fight to the death over even partial attorney fees they certainly do not want to go to a jury on this one.

If a court ever gets to rule on the Statutory damages issue stated in the counterclaims the game will be over for them.