In Atlantic v. Boggs, in Corpus Christi, Texas, the RIAA has filed reply papers further arguing that the defendants' counterclaims should be dismissed:
Reply Memorandum of Law in Support of 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
1 comment:
Wow! 32 pages worth. Looks like they're really afraid of this stuff.
Ray, the issue I see here comes down to, as a Defendant, if you're sued, and if you've responded to the suit, are you entitled to your day in court? Can you force Plaintiff's to have to lose in court, rather than cut and run when the going gets tough for them, leaving you out of pocket for expenses, and never legally vindicated?
I ask because the RIAA is making a big deal about the counterclaims being duplicative and redundant. They say you don't need such mirror counterclaims, since the issue on the original claims will be resolved in court. But they've yet to actually resolve any of these claims in court in any of their cases, and seem most unlikely to ever really do so. That, to me, makes their argument for dismissal of the counterclaims an outright lie, and an attempt to keep them in control of just how far they wish to pursue this case, and no further.
Is this a valid argument to keep the counterclaims alive? That Plaintiff's are disingenuous about this suit, and the Defendant must be guaranteed his own rights to trial here?
And yes, you can save money by wisely spending some, sometimes, despite Plaintiff's contentions to the contrary.
I note that greedy Plaintiffs now contend they were never fully compensated by their KaZaA settlement, which is also secret, so who would know. I gather they don't wish to be deposed over this issue and have it brought out into the light of day, so we should just take their word for it otherwise. The funny thing about KaZaA itself is that they never provided any of the files shared – just the program used. And now Plaintiffs claim the right to recover damages from ALL infringers in addition. Just what did KaZaA pay all that money for then? Something just doesn't smell right here.
As for not citing any cases challenging the constitutionality of the statutory scheme for protecting copyrights, doesn't there always have to be a First Case somewhere? No case upholds those penalties either, but somehow that doesn't seem to matter to the Plaintiffs.
Ditto for the misuse of copyrights claim.
I like how they claim, having sued with virtual identical boilerplate in every case so far, that the facts of Foster are inapplicable to this case. They are the same case!
Of course, Foster and Stubbs are wrongly decided. Again judge, let us guide you in your thinking.
By the way, it's a leap for Plaintiffs to claim that because Defendant was responsible for an Internet account they claim to have identified as infringing, that it was his household that distributed them. But that's exactly what they say on page 9.
Any dismissal that doesn't address the issues in this counterclaim will be a victory for the Plaintiffs. That's the true value being litigated here, and why Plaintiffs cannot allow these claims to ever see the light of a courtroom day!
And no, you don't want your fees decided by Rule 41. You want them claimed under the provisions of the more liberal Copyright Act provisions.
And on Page 12, where it's claimed that this claim is expressly authorized by, and consistent with, the Copyright Act. I wasn't aware that the Copyright Act allowed suing innocent, non-infringers, who refused to cave into settlement demands, on the theory that if they didn't do the infringement themselves, they know who did. Can someone show me that sections again?
Oh, there's so much more wrong here, and not enough blog space to point it all out for anyone who missed it on reading through the first time themselves. I hope for a well-crafted reply demonstrating all this to the court.
One thing that can't go by unmentioned, however, is Plaintiff's contention that high damages are warranted by the fact that the Defendant somehow created a license that distributed the copyrighted recordings to millions of other people. Aside from the painfully obvious fact that no home broadband account can even upload to hundreds of people, let alone millions, Plaintiff's create this similar opportunity with every CD they sell. Any CD can be ripped and placed on the Internet with software common to all PC's. Plaintiffs themselves create that possibility with every shiny disc they sell. To say that this one Defendant – and this one Defendant alone – created this unlicensed distribution to millions of other people is simply wrong. Yet they want to justify the statutory damages against him as if he did.
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