In an upstate New York case, in federal court in Binghamton, Interstate v. Kimmel, the Judge has granted the RIAA's motion to dismiss the defendant's counterclaims for a declaratory judgment of non-infringement and for copyright misuse:
June 18, 2007, Decision, Granting Motion to Dismiss Counterclaims*
Defendant is represented by Richard A. Altman of Manhattan. Similar motions had been made to dismiss virtually identical counterclaims in two other cases handled by Mr. Altman, Atlantic v. Shutovsky, in which the motion was denied, and Lava v. Amurao, in which the motion was denied as to the copyright misuse counterclaim, and in which the Court's order denied the motion as to the declaratory judgment claim but at oral argument the Judge had indicated he was granting the motion as to that claim.
* 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:
Hm, was the judge talking about two different cases at the same time that he might have confused with each other?
"Unlike the defendants in Leach and Larson,
there is no indication that Defendant is in the business of distributing music and, therefore,
this case does not involve claims of ongoing infringement. The Court finds that, if Plaintiffs’
infringement claim is withdrawn, there is no continuing case or controversy. For this reason,
the counterclaim should be dismissed."
A few sentences before this reasoning why the counterclaim should be dismissed, he cited from the original complaint; "The Complaint alleges that “Defendant, without the permission
or consent of Plaintiffs, has used, and continues to use, an online media distribution system[...]" (emphasis added)
Sure, it could be my lack of english knowledge why I think the judge errs in his reasoning, but for me sounds "continues to use" very much like something "that involve claims of ongoing infringement."
But what do I know? I can not even write english satisfactorily. ;-)
Outrageous!
Why are defendants prevented from having their own day in court after being damaged by RIAA unproven suits? Especially after the judge "seems" to understand the RIAA strategy when he quotes Leach v. Ross? Defendant DOES face an ongoing concern of having been branded an "infringer" and having had has veil of anonminity pierced, that would allow other lawsuits to be easily filed against him now. Such a declaration to protect him against this is vital, given the RIAA's refusal to actually go to court and allow him to clear his name.
Interesting that the judge says that "this case does not involve claims of ongoing infringement," since that's exactly what the RIAA initially claims against all defendants.
From the looks of it overall, this Judge seems to not want to make any controversial decisions. Nor does he seem to care how other courts have seen this issue. He's playing it very safe, perhaps hoping for ...
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