Michelle Santangelo has filed a motion for leave to serve a third party complaint against Kazaa and AOL, as well as against someone who installed Kazaa software, in Elektra v. Santangelo, alleging that any injuries plaintiffs might have sustained were the result of
the negligence and breaches of the Third-Party Defendants named herein: in the defective design of Sharman Network’s program, “Kazaa” which was a dangerous instrumentality in its each and every use as it existed in 2002-2004; the trespassing and reckless installation by Matthew Seckler of such program; the failure to warn by AOL and Sharman; the failure to block the downloading of such files by AOL; the improper blocking of alleged (RIAA) warning messages by AOL and Sharman; and, the secretive file sharing system of and by Kazaa.
This may be the first time an RIAA defendant has commenced a third party against the maker of the p2p software. It was suggested in Interscope v. Duty that defendants should consider such third party practice.
It is unclear from the papers why the defendant felt the need to make a motion for leave to serve a third party summons and complaint, since under the rules she had the right to do so as a matter of right.
Defendants' Memorandum of Law in Support of Motion for Leave to Serve Third Party Complaint*
Defendants' Proposed Third Party Summons and Complaint*
* Document published online at Internet Law & Regulation
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Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
10 comments:
Better and better!
And this is too funny for words:
"Plaintiffs can only benefit if those parties are further enjoined from violating copyright actions, as requested in Defendants’ Third-Party Complaint."
So much for a simple little suit against some nobody with no real means to defend themselves against the corporate behemoths.
It's nice to point out that KaZaZ has never indicated which files are legal to share, and which ones aren't.
Is there, btw, any proof that the RIAA ever sent, or attempted to send, a warning message to this Defendant to warn about copyright violations?
As for that little turncoat Seckler, I would have hit him up for more than just $1.
The first third-party action, yes, but Charles Mudd in Chicago filed a class action against Sharman in December.
Yes, but this is a whole different thing. A third party action means:
1. The RIAA is involved in the litigation and will have to see it through.
2. The RIAA, Kazaa, AOL, and the kid who installed the software will all have to be interacting with each other.
3. Kazaa and AOL will have to defend themselves as best they can, which may mean attacking the plaintiffs.
4. The defendant might well walk away with a judgment of zero due to the fault of Kazaa and/or AOL.
5. Kazaa's settlement won't protect it from the Santangelos' claims against it.
Bottom line: if every defendant who got dragged into this mess by, or may have gotten dragged into it by, Kazaa, iMesh, or someone else, brought a third party action like this, it would bring the RIAA's campaign to a crashing halt.
"5. Plaintiffs claimed at the Conference that inordinate delay was a necessary
component of bringing in third parties – that it took them “two years” to serve Sharman
Networks (“Sharman”), it being located “on a small island.” However, Plaintiffs now know
where to find Sharman and can simply disclose the location. Alternatively, I would respectfully request that the Court direct Plaintiffs to advise where to serve Sharman. Further, since the
RIAA now works with Sharman, it strains credulity to imagine they do not know where to locate
Sharman.
6. Sharman Networks is headquartered in Australia and incorporated in the
Republic of Vanuatu.
7. Matthew Seckler is easily located; he resides in New York.
8. AOL, LLC is located in Dulles, Virginia, and can also be served through
its parent company, Time Warner, located in Manhattan, an island much closer than Sharman’s."
Now thats what I call a well formulated pun. His description what an "EULA" is, is also well on point. :-)
Ray, could this complaint open her up to a copyright infringement lawsuit by Kazaa? Since she didn’t agree to the EULA, she isn’t properly licensed to have the Kazaa software installed on her computer. I know from my line of work as an Administrator of a public computer lab, we have always been told that it doesn’t matter if someone else installs a pirated program, we can be held libel for it.
Brilliant move by Mr. Glass!!!
I especially liked this witty comment:
located in Manhattan, an island much closer than Sharman’s.
Regards,
Art
I especially like the fact that the RIAA will be the lead witness for Ms. Santangelo. See RIAA November 15, 2004, testimony at Federal Trade Commission, exhibit A to reply affidavit of Zi Mei in Atlantic v. Does 1-25.
1. As far as I know, no defendant in any case has ever acknowledged receiving the RIAA's alleged messages; however, since Kazaa and AOL were blocking them, that explains that -- not that I believe the RIAA, but it doesn't matter either way.
2. I filed this by motion instead of by right because I was ordered to do so by the Court if I wanted to file a TPC. I'm aware of the 10-day rule promulgated under Rule 14, but the Court's order trumps.
3. Why are you calling Matt Seckler a turncoat? Did I miss something? Look, the RIAA is ruining this country by suing children and turning them against each other. The last thing the Santangelo's wanted to do was sue Matt, so I framed the Complaint to "vindicate the right" and to protect the Santangelos without punishing Matt if possible.
4. FWIW, the motion was filed on behalf of both defendants, but the ECF may have been unclear, in which case I apologize.
5. Thank you all for the kind comments regarding the "island" pun. There was an earlier, more caustic (and much funnier) version -- but I look awful in orange.
I'm actually a little concerned about this move. Though I have little love for AOL (due to its connection with Warner), I believe that this may set a dangerous precedent for ISP's. Parental controls cannot be expected to block third-party programs, because of the way that this software works. Additionally, all ISP's in the future would be required to monitor all traffic on their networks--a clear violation of privacy rights on the parts of individuals. I question the wisdom of such a move.
ISP's are similar to the messenger in days of old. You don't kill the messenger for delivering the message, even if it's a message you don't want. I don't want my ISP to see my personal, private emails to my doctor, or to my wife. I don't want them to believe that my SSL connection to a hosting site violates their requirement to monitor, especially because (as a member of the press) I have a vested interest in protecting my sources. This is a potential threat to privacy, and I'm against it.
Sharman Networks could be held responsible, as their software does not limit the sharing of directories such as the Windows directory--directories which contain security information that may be used to compromise a computer. This failure is also a privacy issue, though in this case it does go against the company. Additionally, the help files are lacking and it leaves junk information behind when it's uninstalled. Anyone know of the truth of this? I don't file-share.
Actually, AOL could have done something.
You also got to remember that not only AOL didn't block the Kazaa program, they blocked those e-mails that the RIAA had been saying that they sent. I mean, come on, block the messages but not the net access to Kazaa? I don't know about you, but something doesn't add up, and above all else, it proves that AOL was always in the position to do what ever they wanted with user's accounts, filters, etc.
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