Recording Industry vs The People: RIAA Moves to Dismiss Complaint in Andersen v. Atlantic Class Action

Sunday, September 16, 2007

RIAA Moves to Dismiss Complaint in Andersen v. Atlantic Class Action

A number of the defendants in Tanya Andersen's class action, Andersen v. Atlantic, have filed a motion to dismiss the complaint in that case. The moving defendants are the record companies, the RIAA, and Settlement Support Center LLC.

Interestingly, all of the defendants except MediaSentry are represented by the same law firm.

No response to the complaint has been filed yet by MediaSentry (now known as SafeNet).

Defendants' Memorandum of Law in Support of Motion to Dismiss Complaint*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet

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

9 comments:

StephenH said...: Ray,

It seems that the RIAA is trying to dismiss mostly based on the Knorr-Pentagon doctorine. Can you define this for readers here. I am not asking for any type of legal advice here, but I just want a definition of the term RIAA is using.

Next, it seems that RIAA is trying to dismiss because they claim that Atlantic v Andersen is still active due to the initial counterclaims and that it is illegal to move them to this suit. I am not a laywer, but I think that "moving" them would not be a reason to dismiss.

I also feel that RIAA is trying to get this dismissed, because I have a feeling if this is not dismissed it could have the potential to open a big can of worms for the RIAA, potentially even changing or stopping this campaign.

There are clearly innocent users out there, and I beleive RIAA should pay the price for targeting them with unreliable investigation tactics.

I was curious Ray, what do you think RIAA will do if this case is NOT dismissed and then certified as a class action?

Stephen; September 16, 2007 at 1:30:00 PM EDT
Interested Observer said...: I wonder if any of the observations here:

Gellis, Catherine R., "RIAA Lawsuits and Noerr-Pennington Immunity" (December 21, 2004). Available at SSRN: http://ssrn.com/abstract=933121

might cast some doubts on their claims of Noerr-Pennington.; September 16, 2007 at 3:10:00 PM EDT
raybeckerman said...: Stephen, the RIAA has been trying to use Noerr-Pennington improperly. For a much more responsible discussion of Noerr-Pennington, take a look at the defendant's memorandum of law in opposition to the RIAA's motion to dismiss counterclaims in Lava v. Amurao.; September 16, 2007 at 7:55:00 PM EDT
AMD FanBoi said...: So according to the RIAA et. al., they can beat up on you all they want without evidence that would withstand a trial and may have been illegally gathered in the first place, trumpet the suing of you in press releases to terrorize other Americans with computers and ISP accounts, and because of Noerr-Pennington doctrine, nothing bad can ever happen to them in return. Does that about sum it all up?

Question: RIAA et. al. claims that Andersen II must be dismissed in large part because it's a duplicate of Anderson I counter-claims. Would the addition of a single additional plaintiff (I know she's going to Class Action certification, however, I don't believe she has it yet) to this suit differentiate it enough from Andersen I to shoot down all those arguments?

Btw, does Noerr-Pennington doctrine protect plaintiffs against "negligent" filing of lawsuits? The RIAA has sued a number of clearly wrong people due to their lack of due diligence before suing. And once they've picked out a target on little more than a screen snapshot and an IP address, they absolutely refuse to drop their pursuit of the given victim regardless of what early evidence might be presented. Pay, or go to court, are the only options. How can this be protected behavior?

One interesting point:

3. Andersen has not stated a claim for invasion of privacy through
public disclosure of private facts.

I don't know about you, but the contents of my hard drive are damn well private to me, and you accessing it for the purpose of printing out directories to all and sundry is a definite invasion of privacy!; September 16, 2007 at 10:07:00 PM EDT
derivative said...: Ray:

To this layman, the shenanigans pulled by the RIAA seem, on the surface, very similar to those pulled by DirecTV. In Sosa v. DirecTV, the appellate court upheld the Noerr-Pennington defense, and threw out the RICO claims.

Obviously, one difference is the RIAA is a cartel and DirecTV is a single company, but I will still be very interested to see how this plays out and whether the facts in this case can be usefully distinguished from those in Sosa.

Keep up the good work!

Regards,
Pat; September 17, 2007 at 12:16:00 AM EDT
StephenH said...: Ray,

Just what is noerr-pennigton anyway for those like me what don't understand it? Can you define it for me?

Additionally, the issue amd fanboi pointed out I also found interesting "

3. Andersen has not stated a claim for invasion of privacy through
public disclosure of private facts."

I beleive that she has done just that. I beleive that RIAA and MediaSentry trespassed by gathering data about what is on their computers for a purpose other than what someone intended KaZaa or LimeWire for. I beleive that this is an etiquette violation to say the least, and probably IS invasion of privacy and electronic trespassing. Especially gathering up IP addresses to do reverse log searches on when the consumers are only sharing file names and files. The other problem is that Tanya Andersen was an Innocent Victim, so they did do something that went too far to get her identity, and then falsely accused her of sharing when she was not. This is racketeeting and computer fraud.; September 17, 2007 at 2:48:00 AM EDT
Alter_Fritz said...: Off Topic;

Me wonders if the MediaSentry guys are ridiculing those well-known and respected record companies also behind their back in corporate internal mails? :P

"In one case, a Universal Music executive asked if there was any data showing the music industry's lawsuits were reducing file-sharing activity from addresses ending in .edu -- namely, colleges and universities. An email showed that Mr. Saaf forwarded the message to five employees with the note: "Take a moment to laugh to yourselves." A spokesman for Universal had no comment.

Some clients expressed frustration in emails that despite hiring MediaDefender, their property was widely available on the Web. One Sony BMG executive complained that he was able to download Beyonce's "Beautiful Liar" on the Soulseek site, despite MediaDefender's work to protect the song. "Can you please investigate the problem and ACTUALLY solve it (going on for months now)?" the executive writes. Sony BMG had no comment." Source: http://online.wsj.com/article/SB118998414197229169.html?mod=hpp_us_whats_news via Slyck; September 17, 2007 at 11:06:00 AM EDT
raybeckerman said...: stephen...... read the papers in lava v. amurao......

alter.... i had to bend my comment policies to publish that one, it's way off topic......; September 17, 2007 at 2:15:00 PM EDT
AMD FanBoi said...: alter:

FYI, MediaDefender is separate and different from MediaSentry/SafeNet.; September 17, 2007 at 6:51:00 PM EDT

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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