Recording Industry vs The People: RIAA Moves to Dismiss Counterclaims in Elektra v. Santangelo II

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:

raybeckerman said...: I had to reject a comment because the last paragraph of it violated the comment policies. Sorry.; September 2, 2007 at 10:52:00 AM EDT
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.; September 2, 2007 at 6:13:00 PM EDT
raybeckerman said...: Thanks, AMD. The 3rd paragraph violated one of my comment policies; I didn't want to say which one.; September 2, 2007 at 8:38:00 PM EDT
raybeckerman 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?; September 2, 2007 at 8:40:00 PM EDT
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.; September 2, 2007 at 10:20:00 PM EDT
raybeckerman said...: Sounds good, AMD.

Sorry to hassle you.

But we have to be on our best behavior... even if they don't.; September 2, 2007 at 10:22:00 PM EDT
raybeckerman 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....; September 2, 2007 at 10:25:00 PM EDT

Post a Comment

JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove