In Lava v. Amurao, where Mr. Amurao has counterclaimed against the record companies for copyright misuse and for a declaratory judgment of non-infringement, and the RIAA has moved to dismiss the counterclaims, the Electronic Frontier Foundation has filed an amicus curiae brief supporting the opposition papers filed by Mr. Amurao's lawyer.
The EFF argued as follows:
...this lawsuit is but one skirmish in the broader war the Recording Industry Association of America (“RIAA”) is waging against unauthorized Internet copying. Using questionable methods and suspect evidence, the RIAA has targeted thousands of ordinary people around the country, including grandmothers, grandfathers, single mothers and teenagers.....
The RIAA itself has likened its campaign to drift net fishing, admitting that “[w]hen you go fishing with a net, you sometimes are going to catch a few dolphin.” Dennis Roddy, The Song Remains the Same, Pittsburgh Post-Gazette, Sept. 14, 2003, available at http://www.post-gazette.com/columnists/20030914edroddy0914p1.asp.
In addition, the RIAA is attempting to expand the scope of its copyright protections beyond what the statutes provide. This copyright “grab” stems from the plaintiffs’ erroneous theories of secondary liability in copyright law. These theories, which the RIAA knows are wrong, attempt to put parents, employers, teachers, and other internet account holders on the hook for third-party computer activities—even when the defendant has no knowledge or ability to supervise the actual alleged infringers.
For example, Deborah Foster faced frivolous claims of secondary copyright liability despite the absence of any allegation, much less any fact, showing that she knew third parties were using her Internet account to engage in illegal file-sharing, or substantially participating in such file-sharing. See Capitol Records, Inc. v. Foster, No. 04-1569, 2007 WL 1028532, at *3 (W.D. Okla. Feb. 6, 2007).
The difficulties facing “the dolphins” are compounded by the challenges that individuals face when attempting to litigate in federal court. When the RIAA threatens suit against an individual, it makes sure to offer her a carefully chosen sum that is substantially smaller than the legal fees required to fight the accusations, even for defendants that are completely innocent non-infringers. Faced with the threat of costly litigation to defend their names and the possibility that many thousands of dollars in damages might be wrongly assessed against them, see, e.g. BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) (affirming $22,500 statutory damages award against a mother of five found liable for illegally downloading thirty songs), many innocent people settle because they cannot afford the legal costs to fight back.
Thus, at the heart of Defendant’s counterclaims and Plaintiffs’ motion to dismiss is the question of consequences – namely, what consequences should attach to plaintiffs who carelessly net “dolphins” in their mass litigation campaign and then walk away from these cases when a dolphin acts affirmatively to protect itself?....
Defendant has alleged that Plaintiff’s case here has no merit, has been brought to harass him, and that he has not infringed any of its legal rights. He has also alleged that by bringing this case, Plaintiff has illegally misused its government-granted copyright, thus jeopardizing its enforceability under the equitable standards of the law. ...Amicus EFF takes no position as to the actual facts of this case, but if these allegations are true, then this presents a very serious situation for the Court to consider.
If Plaintiffs have, in fact, brought such a frivolous case and are misusing their statutorily-granted copyrights, they should be held responsible for their actions. Moreover, Defendant deserves a final answer and peace of mind, rather than a voluntary dismissal that allows the specter of future litigation to linger.
Counterclaims such as those brought by Defendant—for a declaration of non-infringement and a finding of copyright misuse—will promote accountability and bring him out from under that Damoclean sword. Further, permitting the counterclaims to go forward may ultimately promote judicial economy. Careless copyright plaintiffs will think twice before filing suit if they know that voluntary dismissal will not shield them from the consequences of carelessly dragging individuals into federal court. To disallow such claims, by contrast, would allow Plaintiffs to play a nefarious “wait-and-see” game: those that expend the money on attorneys’ fees and costs to fight back against the bogus suits would find their cases voluntarily dismissed without recompense, while those who did not fight back would end up having to submit to either an unfair settlement or default judgment.
For a full copy of the brief:
Amicus Curiae Brief of Electronic Frontier Foundation in Opposition to RIAA's Motion to Dismiss Counterclaims*
* Document published online at Internet Law & Regulation
Commentary & discussion:
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