The transcript of the May 18, 2007, oral argument, before Hon. Charles L. Brieant, in Lava v. Amurao, is now available online. The judge indicated he was denying the RIAA's motion to dismiss the copyright misuse counterclaim but was granting the motion as to the counterclaim for a declaratory judgment.
A subsequent court order indicated that the Judge Briant was denying the motion as to both counterclaims, so there is an inconsistency between the argument and the order. We do not know at this time whether the order was mistaken, or whether the Judge changed his mind subsequent to the oral argument.
The RIAA has filed its reply to the copyright misuse counterclaim.
Transcript of May 18, 2007, Oral Argument*
Plaintiffs' Reply to Second Counterclaim*
* 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
6 comments:
It would seem this Judge had his mind made up before the oral arguments began. He ruled on the Declatory judgement counterclaim before any argument by the defense. During the discussion, he ruled on the copyright misuse counterclaim before affording the plaintiff to fully present its argument.
The Judge seemingly did not understand the importance of not allowing the plaintiff to walk away from the complaint without consequences. He simply asserted that the issue would be resolved at trial instead of explaining some analysis of the facts and circumstances of the case in the context of the Declaratory Judgment Act, which I believe he should have done if this ruling can be justified. Perhaps, as you suggest Ray, he later realized he was wrong and changed his mind and decided not to dismiss the counterclaim.
This Judge has a mixed bag of ratings at The Robing Room, http://www.therobingroom.com/Judge.aspx?ID=1395
After reading this transcript it would seem Comment #: 2261 best captures what I took away from that reading, granted a tiny snippet of information about this Judge.
Thank you very much for providing the transcript!
transcript page 4 starting line 13:
MR. REYNOLDS: With respect to the misuse counterclaim, your Honor, there simply is no such thing as a claim for copyright misuse. It has never been recognized by any court.
Judge indicates he disagrees with RIAA lawyer on that and who wonders RIAA lawyer admit (allegedly only seconds) after claiming that there is no such thing:
[...] I recognize in the copyright, the patent context and other context there is a defense of copyright misuse. We don't dispute that there exists a defense of copyright issues.
Just another case of plaintiff's counsel trying to con a court with something that is "simply not true" as Judge West describes RIAA lawyers behaviours?
I never before saw that website RobingRoom.com where people can rate the performance of judges.
Interesting.
My readers should have a lot to say.
MR. REYNOLDS: With respect to the misuse
14 counterclaim, your Honor, there simply is no such thing as a
15 claim for copyright misuse. It has never been recognized by
16 any court.
17 THE COURT: This may be the first such case.
That's truly great to hear a judge say that just because something hasn't happed before, doesn't mean it can never happen. To turn it around, it's like an argument against the RIAA that because nobody has ever been convicted of Internet piracy, nobody every could. The RIAA would squeal like a stuck pig if that was ever tried, much as they push as hard as possible for no new law that goes against them.
THE COURT: You don't take no for an answer, do
1 you?
2 MR. REYNOLDS: I try not to.
3 THE COURT: I try to make it stick. The answer is
4 no.
Now that's the sound of a Slapdown!
Btw, I wonder if there are any entries for MJ Levy at RobingRoom.com?
A bit off topic, but important non the less!
Over 1 Million Potential Victims of Botnet Cyber Crime <- FBI press release
How many of those are now wrongly accused by RIAA?
And nobody will know because their "Expert" is no forensic expert at all and simply refuses to look if a system he looks at is one of those above mentioned!
Yes, I believe that the judge was clearly wrong in jumping to conclusions as well. However, as Alter and amd have suggested, he may have changed his mind over the exchange that he and the RIAA had over Arista v Flea World, starting on page 6, line 2. I think that this exchange will prove my point:
10 THE COURT: When was that decided?
11 MR. REYNOLDS: That was from the District of
12 New Jersey.
13 THE COURT: Where?
14 MR. REYNOLDS: District of New Jersey.
15 THE COURT: Forget it. Doesn't mean a thing to
16 me. I don't care what the District Judge in New Jersey
17 thinks. I don't care what a District Judge in Foley Square
18 thinks.
19 I would like to direct you, you know, to the
20 Center for the Humanities against Gasperini decided by the
21 Supreme Court. Gasperini against The Center for the
22 Humanities, reversing the Second Circuit. It says, clearly
23 as can be, District Judges are not bound by District Court
24 opinions of other District Court Judges.
25 MR. REYNOLDS: I understand that, your Honor. I
7
1 was pointing to Flea World because I believe the
2 circumstances --
3 THE COURT: What do I care what the District of
4 New Jersey says?
5 MR. REYNOLDS: The District of New Jersey cited
6 multiple decisions from multiple federal circuits.
7 THE COURT: If you have a Second Circuit decision
8 you want to confront me with, I have to endure that.
9 MR. REYNOLDS: The Second Circuit, your Honor, has
10 never recognized the defense of copyright misuse.
11 THE COURT: They never said you couldn't have, did
12 they?
13 MR. REYNOLDS: Not to my knowledge.
14 THE COURT: This is just a pleading exercise and
15 I'm not participating in it.
I think that this caused him to reverse his decision over the first counterclaim.
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