Friday, August 31, 2007

RIAA Moves to Dismiss Counterclaims in Elektra v. Santangelo II

The RIAA has filed a motion to dismiss the defendants' two (2) counterclaims, one for copyright misuse, the other for breach of duty to warn, in Elektra v. Santangelo II

Plaintiffs' Memorandum of Law in Support of Motion to Dismiss Counterclaims*

* Document published online at Internet Law & Regulation



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




7 comments:

Ray Beckerman said...

I had to reject a comment because the last paragraph of it violated the comment policies. Sorry.

AMD FanBoi said...

I will take a wild guess that the rejected post was mine. I thought about that as I typed the final paragraph. However, since I don't have a copy of that post otherwise, I shall rewrite my comments from scratch, and save the more inflammatory – accurate because it represents the true level of emotion against the RIAA, and especially their lawyers, by many people – for Slashdot.

Failure to warn is an appropriate defense claim because, unlike what the RIAA contends, recorded music is dangerous, and clearly a danger that the RIAA is well aware of . The foreseeable "injury" from misuse, while financial instead of physical, is real nonetheless. It is capable of destroying individuals, and entire families, while terrorizing many others – EXACTLY AS IT'S INTENDED TO DO IN THIS CAMPAIGN. If this doesn't constitute a requirement for Failure to Warn, then Failure to Warn has no meaning at all.

Regarding the attempt to dismiss the Misuse of Copyright claim "because no court has affirmatively found copyright misuse as a cognizable cause of action," the RIAA's arguments fail for several reasons. Obviously the legal term "Misuse of Copyright" exists because there are previous references to it. And it's the most appropriate remedy for certain bad acts by copyright holders. The government giveth, and can taketh away if necessary. But most of all, the RIAA tries to argue that because this never has happened before, it never can happen at all. This is outright WRONG, because these circumstances, and this outrageous misuse of copyrights, has never occurred before. This may very well be exactly the right remedy, and needs to be fully considered in court, and not dismissed on such flimsy and inappropriate rational.

Regarding the RIAA's now standard boilerplate replies to counterclaims that they (the RIAA) is fully protected in their pursuits to ruin lives by the First Amendment and Noerr-Pennington Doctrine, the RIAA files these suits to gain maximum publicity even more than actual – or excessive – damages from Defendants. By their rational, they should be allowed to do absolutely anything they please in pursuit of those they believe to be copyright infringers, even when they have no evidence in the process. They also believe that Defendants should have no rights or recourse in return. This arrogant misuse of the law needs to be stopped, and cannot be what was intended by the First Amendment, or Noerr-Pennington. Defendants too have First Amendment rights, and significant exceptions to Noerr-Pennington, including sham lawsuits, exist. A lawsuit that you do not intend to pursue to completion, win or lose, and instead is instituted by a well-funded advisory to punish others simply as a result of the stress and expense of the legal process is certainly a sham in the eyes of an average person. It's akin to a SLAPP in some states now, and likely Malicious Prosecution in progressive states as well. The RIAA should not be allowed to hide behind either of these defenses of their outrageous actions!

Lastly, regarding offering a post that steps over the line, one is never sure where that line is until after they've crossed it.

Ray Beckerman said...

Thanks, AMD. The 3rd paragraph violated one of my comment policies; I didn't want to say which one.

Ray Beckerman said...

If it happens again, would you want me to copy and paste the portion of the comment that doesn't offend, and post it?

AMD FanBoi said...

Ray,

As long as it doesn't alter the context of my posts, editing to remove improper content is fine with me. Because I view my paragraphs as self-contained, I would believe any entire paragraph can be safely removed, and just place a notice such as: "[paragraph removed due to violation of posting guidelines]"

I would hope that's not too much to ask.

Hopefully I will not leave you in the position of needing to do this too often as I exercise my own First Amendment rights to publicly express my OPINION, where allowed.

Ray Beckerman said...

Sounds good, AMD.

Sorry to hassle you.

But we have to be on our best behavior... even if they don't.

Ray Beckerman said...

I don't have the ability to edit it. I just have the ability to submit my own comment and credit it to you. But I guess I could just say within my comment:


amd _fanboi said....