In May of this year, the United States Supreme Court came down with the decision in Bell Atlantic v. Twombly, --US --, 127 S. Ct. 1955 (May 21, 2007) which established a "plausibility" standard for federal pleadings.
In Interscope v. Rodriguez, it was held that the RIAA's boilerplate complaint, which it has been using in all of its cases for the past 4 years, and which robotically alleges only the magic incantation of "downloading, distributing and/or making available for distribution", is insufficient under the Twombly standard, and the Court dismissed the complaint.
Thereafter the highly predictable RIAA lawyers, who handle these cases "programatically" (to use their leader Matthew Oppenheim's terminology), filed an amended complaint which gives us a valuable insight into how they intend to negotiate the post-Twombly, post-Rodriguez era. The amended complaint robotically inserts -- where the magic incantation used to be -- new boilerplate which is taken mostly word for word from the RIAA's boilerplate form of interrogatory answers (See e.g. page 5 of interrogatory answers in UMG v. Lindor). The new boilerplate abandons the "making available" language, and says that at a certain date and time they "detected" an individual downloading and 'distributing' files, who was doing so continually.
Clearly, the new boilerplate complaint is "implausible" on its face, since (a) it is fundamental that they did NOT detect an individual (their own expert has admitted as much under oath), and SONY BMG's witness at the Capitol v. Thomas conceded as much as well, (b) they cannot point to a SINGLE instance of the defendant actually copying anything or actually distributing anything to someone else, (c) it is impossible for any individual to do anything "continually", and (d) distributing is a term of art under 17 USC 106(3), the elements of which are not spelled out factually as they are required to be under Twombly.
Accordingly I urge all practitioners who have a "making available" complaint to move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), or, if the time to do so has passed, to move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), on the basis of Twombly and Rodgriguez.
If the RIAA counters by filing an amended complaint with the new "detecting an individual" boilerplate, that, too, is clearly the type of "formulaic" and implausible pleading that Twombly forbids, and should be dismissed as well.
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