In Elektra v. Torres in Brooklyn, the RIAA has indicated an intention to make a motion to dismiss defenfant's counterclaims for attorneys fees, declaratory judgment, antitrust law violation, and copright misuse:
May 25, 2007, Letter of Richard Guida (Re Motion to Dismiss Counterclaims)*
May 25, 2007, Letter of Ray Beckerman (Re Motion to Dismiss Counterclaims)*
* 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
2 comments:
How can they continue to say that the defendant has distributed to millions of users. Can they point to each of those sessions? Can they show that the files on the list are actually on the computer in question and are what they purport to be? Can they even show the computer in question? Can they show how long they were available, assuming they are actually on the computer and are what they even purport to be?
For a copyright infringement to have occured, doesn't it have to have been distributed? Or is just having a copy grounds enough?
It would appear that they are trying to say that millions of people had it so they can get these huge awards of damages, without having to show that any distribution in fact took place.
meh
Would you say that, in more plain language that:
The Defendant needs the second claim in order to support the first claim for fees. Plaintiffs are trying to make these separate issues in order to destroy them individually. Defendant wants his day in court to not be short-circuited by an early exit by Plaintiffs, and the Plaintiffs are trying to keep that door open since none of this would even be an issue if they actually won their case in court. The argument that justice be denied here because it might constitute a waste of judicial resources seems particularly weak, given the circumstances of this case.
If the judge wants to agree that the third counterclaim is flawed, he should at least offer the ability to repair that claim by providing more specific information. The relevant market should be easy to define, since it's all music digital downloads.
And it may just be my opinion, but the Plaintiffs ability to tar you publicly with a suit, then hide behind Noerr-Pennington, and in the end deny you your day in court to vindicate yourself when they seek to dismiss without prejudice, should be viewed in the pattern of their overall conduct to date, and not just within the narrow confines of this suit alone.
The Plaintiffs hide behind their First Amendment right to petition the Government for a redress of grievances, but then seek to deny the defendant that same right to be heard and cleared in court, with proper compensation for the outrageously weak, disruptive, expensive, and extortive suit brought against him.
As for misuse of copyright claim, just because such a claim is "unprecedented", shouldn't automatically mean it can't be a cause of action. Every claim is "unprecedented" before it's tried the first time. These whole suits are "unprecedented" in their scope and nature. Loss of copyright may be the only truly proper punishment for such "unprecedented" actions on the part of the Plaintiffs, and I hope there is a judge capable of recognizing this and carrying it through to trial. All things considered, I'd consider copyright misuse a very proper form of affirmative relief, if granted to the defendant based on the current evidence. After all, it has been a recognized defense in the past.
As for Plaintiffs wrongly bringing action against Defendants, a court would decide that question. And if the decide it in the Defendant's favor, then it is no longer simply an allegation.
So just who is trying the hardest to prevent commencement of this litigation? Plaintiffs, or Defense?
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