Thursday, April 26, 2007

Defendant Opposes RIAA Motion to Dismiss Counterclaims in Corpus Christi case, Atlantic v. Boggs

In Atlantic v. Boggs, in Corpus Christi, Texas, the defendant has filed papers in opposition to the RIAA's motion to dismiss his counterclaims:

Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion to Dismiss Counterclaims*

Defendant is represented by Charles J. Rogers, of Conley Rose, P.C., 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

5 comments:

Scott said...

I really like Charles J. Rogers' writing in this memorandum of law. It's not as bracing as Mr. Ledford's, but it's a very clear narrative that a non-lawyer like me can understand to a certain extent.

This paragraph was really useful to me in understanding why the counterclaims were important:

"The critical purpose of the declaratory judgment counterclaims is to make sure that Defendant Boggs will be able to obtain closure as to the infringement claims asserted against him, either through having his day in Court to obtain a resolution on the merits of the issues raised in the declaratory judgment counterclaims and corresponding affirmative defenses, or through the Plaintiffs being forced to dismiss their claims with prejudice or grant a covenant not to sue. The 13
Case 2:06-cv-00482 Document 22 Filed 04/26/2007 Page 20 of 41
only reason why Plaintiffs want the declaratory judgment counterclaims dismissed at this point is to make sure that they have a Rule 41(a)(2) dismissal without prejudice escape hatch ready to leap through whenever Defendant Boggs gets anywhere close to winning this case. If the Defendant’s declaratory judgment counterclaims truly were merely redundant, unnecessary, and served no purpose as Plaintiffs assert in their Motion, Defendant would not have wasted any effort to assert them, and Plaintiffs would not have bothered filing a motion seeking to dismiss them. The mere fact that Plaintiffs are working so hard to try to get the counterclaims dismissed shows that they serve an important purpose.8"

Megan said...

Looks like a judge has ordered UW-Madison to identify the students. :(

RIAA 1, Badgers 0 at The Consumerist

AMD FanBoi said...

I would think the argument should also be made that, because the Plaintiff's will settle any such case through their settlement agency for amounts ranging between $3,500 and approximately $7,000, that this constitutes the upper limit of their Actual Damages, and that they should be precluded from claiming higher amounts afterwards.

This entire RIAA lawsuit-terror campaign is simply waiting for one bold judge to step forward and be the first to say "Stop!" and here's where it just cost you in attorney's fees to the defendant, as well as loss of your copyrights through misuse! That day cannot come too soon.

Especially, as has been pointed out elegantly before, the RIAA approach is to sue and launch discovery against one person not known to have directly infringed anything, merely in order to coerce them into identifying actual possible infringers. Rather than pay the first, unknowing victim for their private investigative efforts on the RIAA's behalf, they then dismiss the suit leaving that hapless person with tens of thousands in unpaid legal bills. THIS PATTERN OF ABUSIVE LITIGATION SHOULD NEVER BE AN ALLOWABLE PURPOSE OF ANY LAWSUIT OR COURT ACTION!

An interesting thought: Noerr-Pennington contains an exception for Sham Proceedings (see: California Motor Transport v. Trucking Unlimited, 404 U.S. 508 (1972)). Here, where the Plaintiff knows, or should know, they're suing the wrong defendant, yet continue the suit to "punish" the defendant by driving up their legal fees for the insult of defying them by demanding a trial in the first place, isn't this a Sham? It's obvious purpose is to harm the defendant even beyond what their extortionaire "settlement" amount would have been, since they have no intent of actually going to court and winning. Is this an actionable counter-claim?

Ray Beckerman said...

Megan, that's a routine thing. The RIAA is always getting these ex parte orders. They do it every day.

The only thing newsworthy about it is that it was reported; usually you would never hear about it.

It was not, as reported, a "win" against University of Wisconsin.

1. It wasn't against U-W.

2. I'm sure U-W didn't even have notice of it, let alone have an opportunity to put in papers in opposition to it.

Which is why I am urging students to band together, pool their financial resources, and hire a lawyer ahead of time, to fight the ex parte application when it comes to their neighborhood.

recordjackethistorian said...

I am still trying to figure out how copyright got to be so bent and twisted. The balance of power between artist, publisher and consumer should be roughly equal. But in this time period (historically speaking), it is obviously the publishers who call the shots.

The public has been letting the publishers know just what they think their publications are worth for quite some time; that is **nothing**. Music publishers just have not gotten the message. That said, my original question still remains; what has gone wrong and where did it go wrong?

Cheers, and scratching my head ...

David
a.k.a Record Jacket Historian