Thursday, September 13, 2007

RIAA Asks Judges Karas and Robinson Not to Follow Interscope v. Rodriguez in Barker & Cassin cases

After defendants brought to the attention of the judges in Elektra v. Barker and Warner v. Cassin the decision in Interscope v. Rodriguez, holding that the RIAA's complaint is just "conclusory" "boilerplate" "speculation", and fails to state a claim for relief, the RIAA has now responded, asking both Judges Karas and Robinson not to follow Rodriguez.

September 12, 2007, Letter of Brian E. Moran to Hon. Kenneth M. Karas*
September 12, 2007, Letter of Brian E. Moran to Hon. Stephen C. Robinson*

* 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


AMD FanBoi said...

Wow, that's a surprise!

AMD FanBoi said...

If I was rebutting the RIAA lawyer's letter here, I would be pointing out that not a single case out of the 20,000+ plus filed so far has actually prevailed at trial. And some demonstrably, if not outrageously, wrong ("identified an individual", "infringement is continuous and ongoing", "making available is sufficient", "...and/or...") statements have been made by the Plaintiff's lawyers so far to keep these cases alive.

I also note that the RIAA lawyer is promoting herd behavior among the judges hearing these cases. Sort of a: "if other judges have thought this way, then so should you." Or is that lemming behavior? Either way, I would hope that a judge, were I in court, would be looking at my own case, and not a bunch of other cases, none of which have yet withstood trial.

The real truth here, as seen by us outside of the court room, is that the RIAA doesn't have a case, but wants to continue pre-trial activities as long as possible to terrorize Defendants into possibly throwing other people under the bus, and run up legal bills as punishment for daring to own an Internet account. As such, the RIAA and their lawyers are judge, jury, and executioner, and the legal system is simply their tool of choice. The court system should never allow itself to be used for such punitive behavior.

Btw, given what happened in Interscope, I hope that the supplied copyrights in these other cases are now being carefully inspected. In fact, the RIAA should immediately drop any case where the copyrights aren't completely in order, lest they lose on that point alone and set an undesirable (for them) precedent.

I like the way Plaintiff's lawyers refer to an "unauthorized" peer to peer [sic] network. It leaves me wondering just who is in charge of "authorizing" such networks, and which networks are already "authorized"? The fact that they can refer to it as "unauthorized" implies strongly that at least another category of P2P exists, and that such networks can be authorized. Or is this just more lawyer B.S. to confuse judges?

Of course, Plaintiffs have yet to show a single instance of "unauthorized distribution", which they adroitly attempt to skip over in their letter where they continue to maintain that they've made their case already based on having copyrights. Nor do they state how they can possibly prove this in court. Even if the files were actually found on the computer in question, that doesn't make the case for distribution. That's like saying that, because I could rob a bank, that I did rob a bank, without showing that I ever actually robbed that bank.

Regarding their "substantial evidence", THEY DID NOT attach the Defendant's share folder. They attached a screen shot of a program run on another computer that's never been inspected and is located far away that purports to indicate the CONTENTS of a folder on a computer they've never seen. This share folder, if it exists, is on a hard drive somewhere, and not attached to this letter.

I wonder how the judge in Interscope feels about being called an "outlier"?

Alter_Fritz said...

"I like the way Plaintiff's lawyers refer to an "unauthorized" peer to peer [sic] network. It leaves me wondering just who is in charge of "authorizing" such networks, and which networks are already "authorized"?"

AMD haven't you heard the news yet?

The widely used BitTorrent™ p2p network is "authorized"! (at least clearly by the MPAA and by premium cable television operators)

See for example or azureus/vuze ( ) who offer "authorised" p2pnetwork now.
While BitTorrent also offers music; given the fact that even the plaintiffs here don't get the copyrightregistration thingy in order as pointed out in the case that will start trial in about 2 weeks, I'm not sure if the music from BitTorrent is authorized too.

But taking Mr Moron's argument about non authorized networks from a pure logical standpoint, I guess thanks to him it's time to start using Bittorrent now. Brian, the RIAA lawyer told us so. ;-)

Thanks Brian!

Alter_Fritz said...

Instead of following RIAAS "suggestion" not to follow Honorable Brewster's well reasoned decision to dismiss, maybe the purpose of copyrightlaw would benefit more if the other judges would read for example "Economic Contribution of Industries Relying on Fair Use"
"While policymakers pay much attention to copyrights, exceptions to
copyright protection also promote innovation and are a major catalyst
of U.S. economic growth. Specific exceptions to copyright protection
under U.S. and international law, generally classified under the broad
heading of Fair Use, are vital to many industries and stimulate growth
across the economy. Companies benefiting from fair use generate
substantial revenue, employ millions of workers, and, in 2006,
represented one-sixth of total U.S. GDP.

Art said...

Plaintiffs say their claim in Interscope wasn't dismissed, but the order in that case says "...the Court finds that the complaint fails to sufficiently plead a claim upon which relief can be granted..." and the Plaintiffs can " the complaint..." within 30 days. Sounds to me like it was dismissed unless the Plaintiffs have any actual facts to present in a new re-served claim (which they don't have any facts).

Given that the dismissal in Interscope was due to lack of sufficient facts presented by Plaintiffs, in this response Plaintiffs continue to present conclusory statements as if they were facts. E.g., "Plaintiffs have also specifically alleged that Defendant has violated their exclusive rights ... by downloading and distributing such recordings [using a P2P network]." However, the point is that there are no facts provided by them to indicate any specific acts of infringement by anyone, much less anything to support that Defendant did anything they claim.

It's also incredible that they claim to have provided the "Defendant's share folder" as if a logical concept such as a directory on a computer filesystem were a tangible object that can be displayed in court, or that the dubious screenshots they provide are somehow related to the Defendant.

The fact is that in this case (as in Interscope) the Plaintiffs have failed to sufficiently plead a claim for which relief can be granted. The judge must decide in favor of the Defendant.