The RIAA has filed its opposition papers, opposing the motion to dismiss complaint made by defendant Joan Cassin in Warner v. Cassin
Plaintiffs' Memorandum of Law in Opposition to Motion to Dismiss Complaint*
* 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
2 comments:
Page 1: Can the Plaintiff's prove – not speculate, but prove – that billions of perfect copies of Plaintiffs' copyrighted sound records are disseminated each and every month? And how is that relevant at all to this case?
Page 2: If P2P networds are liable for infringement of Plaintiffs' copyrighted works, shouldn't Plaintiffs then be suing P2P networks – instead of individuals?
Page 2: Plaintiffs claim "devastating financial losses". How can Plaintiff's prove that they have lost a single sale to P2P filesharing at all, let alone through the single actions of this Defendant? Answer: They can't!
Page 3: Interesting that they now claim that they successfully located the same individual on four different dates. Also that there were "as many as" 349 music files. Can they prove that all these were music files? And can they prove that they were actually distributing them to millions of other users? Of course, even with the fastest broadband connections available to the home at the time, such a level of distribution is patiently impossible.
Page 3: Just what information and/or belief allows the contention that these files were illegally downloaded?
Page 4: Outright lie to claim that the identification on the Defendant in four separate John Doe suits eliminates any chance of misidentification here. It only identifies the name on the account assigned those IP addresses at those time – maybe. Not what computer might have been connected, or who was actually using that computer.
Page 4: Plaintiff's allege that Defendant "continues to use, an online media distribution system..." Where is their proof that this is either continual, or that the Defendant WAS EVER the person using this system in the first place?
Page 5: There is ABSOLUTELY NOTHING provided here that connects the Defendant to the actions alleged, beyond the Defendant's ownership of an Internet account identified by the unknown, and certainly highly questionable, still secret investigative methods used by unlicensed investigators and provided to Plaintiffs.
Page 5: None of Plaintiffs claims have yet to be proven sufficient at trial. As such, they still remain highly open to the question of being legally sufficient at all to cause Defendant to have to pay tens of thousands of dollars in defending them. The court should consider such issues carefully, before allowing this case to proceed.
Page 6: Plaintiffs allege download, distribution, and making available. Download is NOT PROVEN with the evidence provided. Distribution, except to Plaintiff's agents of a small number of files is NOT PROVEN with the evidence provided. Making available is NOT PART OF THE COPYRIGHT ACT. And the evidence Plaintiffs have may have been gathered illegally, and the subpoena giving Defendant's identity, given through the improper application of the wrong laws, as has been seen in other RIAA ex parte cases.
Page 9: Is it truly sufficient for plaintiffs to merely say that Defendant has used (not proven that Defendant even knows what an OMDS is), and continues to use (no single shred of proof given as to this) an (undefined) online media distribution system, and that alone can keep this case alive? If this is proven an outright lie, can this come back to bite them? I can't believe ANYBODY would still be filesharing after receiving notice of a lawsuit against them for precisely that act, yet Plaintiffs are claiming the unreasonable actions continue to this day.
Page 12: The court must reach a decision on the Making Available argument, because it is the only action that Plaintiffs have any chance of ever prevailing on. The other two progs (downloading and distributing) are completely NOT PROVEN. Downloading isn't illegal, and may easily not even be how the files got on the computer – provided that the computer in question is even ever found. How else could they have gotten there? Someone unknown brought over a CD of music files and copied them to the hard drive that way. Hey! No downloading here. And Plaintiffs already admit they have no specific instances of uploading or downloading – claiming that they don't need them because of (here we go again) the "continuous" nature of this infringement, which isn't true at all!
Page 12: Excuse me but, I'm not aware that the USA has ever provided the implementing legislation required to make the WIPO treaty valid in the United States. It doesn't matter what any international treaty(s) say if they they're not properly implemented in this country.
Page 15: How is the Napster case relevant? File names were not uploaded to a search index in this case. Nor is Hotaling relevant. No index was used, and no physical copies made and given out. Hotaling shouldn't apply at all.
Page 18: Check carefully how the United States has "implemented" the treaties referenced on this page. What the treaty says, and how it may have been implemented in this country, are two very different things. And there's no indication that any of this affects, or rewrites, the Copyright Act, which is what Plaintiffs are suing under.
I'm absolutely pissed by how the RIAA lawyers lie, shade the truth, make unproven claims that have nothing to do with this individual, or this case, illegally got the identity information in the first place in ways that cannot now be contested, and all the rest of their garbage designed to punish the Defendant – without proof – since they'll drop the case after tens of thousands of dollars in legal bills have been racked up. But this post is too long, so I'll stop here. Have a nice day!
AMDFanBoi wrote:
"I'm absolutely pissed by how the RIAA lawyers lie, shade the truth, make unproven claims that have nothing to do with this individual, or this case, illegally got the identity information in the first place in ways that cannot now be contested, and all the rest of their garbage designed to punish the Defendant[...]
You are for certain not the only one that is.
And while Ray might have had a good start at the oral argument before Judge Robinson which turned a bit into a bitter taste since the Judge and Ray were not familiar with each other so far and this judge oviously have had no more detailed insight in the modus operandi of the plaintiffs lawyers,
maybe Judge Robinson is after all the right judge to make exactly such a motion for sanctions once he is really familiar with the conduct of "organised music's lawyers".
Judge Robinson seems to feel strongly about motions for Rule 11 sanctions, so maybe he is -specially because of that- exactly the right judge to ask for them some times later when he also got the broader picture of plaintiffs behaviour like we here see.
If he has read thoroughly Ray's "easy to understand" written Memorandum of Law in Support of Motion to Dismiss Complaint , this might compensate for this probably not so well first impression of an oral argument where Ray was oviously thinking in the broader picture of the whole Plaintiffs campaign while the Judge haven't had the same big picture in mind.
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